| 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 my claim? Is there a legal precedent that could adversely affect the claim? |
| 2 | Proper Parties | Who are the proper parties to this action? Am I really a proper party in this suit? Is the person in intend to sue really a proper defendant to this suit? |
| 3 | Statutory limitations | Is there any statute that precludes my 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 is institute the action under? |
| 6 | Locus Standi | When all the facts are considered, do I have good 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 my action |
| 8. | Costs of Litigation | What will it cost me to prosecute in terms of; finance, inflationary trends, time, loss of business goodwill, loss of valued relationships? |
| 9 | Relative Strength and weaknesses of the case | What are the strengths of my case? What are the weaknesses of my 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 plaintiff have legal capacity to sue? In what capacity should he or she sue? Will he sue as a direct plaintiff? 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? |
| 12 | Ouster Clauses | |
| 13 | Viability of ADR | |
| 14 | Courts | Which Court with jurisdiction |
COMMENCING AN ACTION – Preliminary Considerations and Issues
Updated on March 10, 2022
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