| PRELIMINARY MATTERS | QUESTIONS TO BE CONSIDERED BEFORE FILING THE LAW SUIT | |
| 1 | Relevant Laws | What is the relevant law on the subject matter? Does the relevant law support the claim? Is there a Case law position or statutory provision that could adversely affect the claim? |
| 2 | Proper Parties | Who are the proper parties to this action? Is the person to be sued really a proper defendant to this suit? |
| 3 | Statutory limitations | Is there any statute that precludes the right of action over this matter? |
| 4 | Cause of action (remedies) | When did the cause of action arise? Does it still subsist or has been overtaken by some legal impediments? What remedies are available for me under the law? |
| 5 | Commencement of action | What mode of commencement is most suitable for the type of action I intend to bring? Under what head of claim or ambit of the law is it best to institute the action under? |
| 6 | Locus Standi | When all the facts are considered, does the client have legal standing to prosecute the action? |
| 7. | Immunity | Does the defendant enjoy immunity? If yes, is his immunity permanent or temporary? How would his immunity affect the chances of commencing and/or maintaining the intended suit |
| 8. | Costs of Litigation | What will it cost the Client to prosecute the suit in terms of; finance, inflationary trends, time, loss of business goodwill, loss of valued relationships etc. |
| 9 | Relative Strength and weaknesses of the case | What are the strengths of the case? What are the weaknesses of the case? Bear in mind the rules of court on pre-action counselling as applicable in some jurisdictions |
| 10 | Legal Capacity to sue and be sued | Does the intending Claimant have legal capacity to sue? In what capacity should he or she sue? Is he or she an infant suing by his next friend? Is the plaintiff a company or a natural person? Should he or she sue in a representative capacity? |
| 11 | Conditions Precedent | Is there any condition precedent that the Plaintiff/Claimant must satisfy before instituting the suit? |
| 12 | Ouster Clauses | |
| 13 | Viability of ADR | |
| 14 | Courts |
LAWgically Speaking
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COMMENCING AN ACTION – Preliminary Considerations and Issues
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