November 30, 2022

COMMENCING AN ACTION – Preliminary Considerations and Issues

PRELIMINARY MATTERSQUESTIONS TO BE CONSIDERED BEFORE FILING THE LAW SUIT 
1Relevant LawsWhat 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?
2Proper Parties Who are the proper parties to this action?
Is the person to be sued really a proper defendant to this suit?
3Statutory limitationsIs there any statute that precludes the right of action over this matter?
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? 
5Commencement 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? 
Locus Standi When all the facts are considered, does the client have legal standing to prosecute the action? 
7.ImmunityDoes 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 LitigationWhat 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.
9Relative 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
10Legal 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?
11Conditions Precedent Is there any condition precedent that the Plaintiff/Claimant must satisfy before instituting the suit?
12Ouster Clauses
13Viability of ADR 
14Courts 

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