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See you in court
20/03/2007 The Star - Articles of Law By Bhag Singh
Be mindful of the costs involved before instituting action against another
party.
WHEN a disagreement develops into a dispute and cannot be resolved amicably,
the logical outcome is to take the matter to court. Mediation can only work
if the parties involved want to settle the problem themselves.
Otherwise only the court has the power to decide and impose a decision that
is capable of being enforced. And indeed people do choose the courts, as is
evidenced by the much talked about backlog.
However, the decision to take the dispute to court should not be viewed
lightly, especially when it involves an individual who seeks to enforce his
actual or perceived rights.
In the magistrate’s court, one reader failed in his claim for RM12,000. Then
there was an unsuccessful appeal to the High Court. What puzzled the reader
were the costs he had to pay, which came near to the amount of his claim.
This situation shows that the decision to go to court should not be done on
the spur of the moment, out of anger or merely to intimidate the other
party.
The role of the court is to decide on a dispute based on the evidence
presented and an interpretation of the law based on the facts. As one judge
said, the decision is and can be a near clinical one. There is no room for
emotion.
Once a matter goes to court, the general rule is that the successful party
will be entitled to costs. This is in addition to court fees that have to be
paid. Fortunately, these are minimal in our country. Then there are the
lawyer’s fees, which is a matter of agreement between the two.
There are occasions when the aspect of costs is not carefully considered. In
the case of well-heeled individuals and active businesses with a good
turnover, the costs can be easily absorbed by them.
For large business organisations, such costs would be treated as part of
business expenses.
If the individual has to use his own hard-earned money, he should be aware
of the chances of succeeding and weigh this against the cost of litigation,
whatever the outcome may be.
One may commence an action in the magistrate’s court but have the decision
reversed in the High Court. Once litigation has started, it could go beyond
the stage either party intended. This aspect is of considerable importance.
Thus, where the amount is said to be within the jurisdiction of the
subordinate court, the costs awarded to the successful party would at most
be in the region of 12%-15% of the claim. But the dissatisfied party could
successfully appeal and the costs could be thousands of ringgit.
Therefore, it beholds the individual at the outset to spend time and even
money to get advice on the merits of the claim and the cost implications in
an objective manner, especially if the case is unsuccessful.
Many a litigant, agitated over what has happened, goes to a lawyer friend to
pursue the claim. The lawyer may help him by charging a nominal sum without
discussing in detail the cost implications if the claim is unsuccessful. The
litigant, who is convinced of the righteousness of his cause, may be lulled
into believing that costs is not an issue.
At the end of the day, he may be burdened with costs which have never been
talked about and he may well feel aggrieved and blame his lawyer for not
advising him earlier. Thus, lawyers should advise litigants about the merits
of their claims and the cost implications, whether the case is successful or
otherwise. |
