17/5/2021Cicero Says ➲ Try for Free!
17/5/2021Cicero Says ➲ Try for Free!
If you have missed it, we recommend you start by reading our blog article:
When you write/prepare any draft or final notes or documents by hand or on your computer/laptop it is always best to write at the top of the page or document or spreadsheet:
“Confidential + Privileged.
Prepared for Actual/Anticipated Litigation/For legal advice only.”
This makes the purpose of the creation/making of the notes/document/supporting calculations crystal clear.
If your home/workplace were subject to a search warrant you would be able to claim Legal Professional Privilege protection over these notes/documents.
Keep these documents confidential (only share these documents with your lawyer) + store these privileged documents away from your other documents.
If you communicate these documents to your lawyer (via email/post), do so separately from other non-privileged documents.
You don't want a situation where the other side may attempt to use your own paperwork (where the purpose has not been made abundantly clear) as evidence of an admission or against your own testimony/tendered evidence.
Important: Please note that you cannot retrospectively protect existing historical or business record documents.
Legal Professional Privilege only applies to newly created notes/documents/supporting calculations made in contemplation of actual/anticipated litigation/for legal advice only.
“You have the right to remain silent … in your civil legal dispute.
By the time you approach our legal team to assist with your civil legal dispute, you may have already discussed the matter in detail or sent text messages/emails to the other party, their agent, insurance company or lawyers.
Whilst you might think you are progressing the matter:
➲ This is generally a mistake!”
We always recommend you consult with our legal team before attempting to negotiate any potential settlement with the other side.
In the event that you decide to negotiate on your own behalf, we recommend you first read our blog article:
"How to cast a magic legal spell? The protection afforded by Without Prejudice Settlement Negotiations."
Blue Ocean Law Group℠ has partnered with QuickFee to provide you with Professional Legal Fee Funding.
That is, using QuickFee you can apply to pay your Professional Legal Fees over 4 months at 0% interest.
Click here or on the image below to apply.
Please contact us if you would like to arrange a longer term payment arrangement consisting of up to 12 monthly instalments using QuickFee's Pay Now service.
There is no requirement that states that a legal dispute can only be resolved via the Court process.
Increasingly, innovative Alternative Dispute Resolution (ADR) / Online Dispute Resolution (ODR) procedures + processes are being established as quicker, more affordable (in some instances, free) and lower risk solutions.
Please refer to our Alternative / Online Dispute Resolution Smart List for additional examples.
“After the Event” (ATE) Insurance is a relatively recent insurance product in the Australian market introduced circa 2016 (previously ATE Insurance cover was only available from overseas).
There are now a multitude of insurers offering ATE Insurance products.
The following quotes are from Mr. Eden Fletcher, National Financial Lines Placement Manager, Aon Risk Solutions Australia extracted from the article “Lose at Court and still win, under new insurance policy” dated October 24, 2016.
“Australia has become the most likely jurisdiction outside of the USA in which a corporation will face significant class action litigation.
The risks and costs of fighting these cases are high, most are settled before they reach the courts.
With a local solution now available, this provides solicitors with an opportunity to take on more cases as their client's representative, given the client will have the protection of this insurance,” Mr Fletcher said.
The intention of this policy is not to encourage litigation, since premiums provide an incentive to settle early rather than progress deeper into trial, with the rate varying according to the stage at which the litigation is settled.
“We believe ATE insurance will be eagerly explored by law firms acting for the claimant, as it will make a higher percentage of potential class actions even more viable than present, subject to the merits of the case.
When there is ATE insurance behind the case, it validates the case has a reasonable chance of success given Ironshore's due diligence and underwriting methodology,” Mr Fletcher said.
✅ The Applicant is commercially minded when it comes to settlement;
✅ The claim is for a monetary award;
✅ The claim has at least a 60 per cent chance of success;
✅ The reasonable settlement value of the claim is sufficient to cover irrecoverable legal costs and expenses and the ATE premium and to enable the claimant to make a reasonable recovery in addition; and
✅ The Defendant has sufficient assets against which to enforce a judgment or agreed settlement
“We anticipate ATE insurance to be popular in Australia given the growth in litigation and the markets appetite for emerging risks and innovative solutions,” Mr Fletcher said.
Generally speaking, to help ensure you obtain the best possible outcome, it is recommended that as soon as practical you:
1️⃣ Proceed to obtain legal advice;
2️⃣ Instruct your lawyer to inform the other side that you have a claim against them, and attempt to settle the matter; and if this is not successful
3️⃣ Proceed to take steps to enforce your legal rights without any further delay.
Apart from the risk of the lapse of any Statute of Limitations Period, if your claim seeks equitable relief, failure to provide notice to the defendant that you have a claim and intend to enforce it, may open the door to allow the defendant to seek reliance on the equitable defence of laches, or more generally estoppel with the circumstances of the case unfolding in support of these defences the longer the defendant is able to show inaction on your part.
Laches is a defence only available to a defendant in equity, where a plaintiff's lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, is viewed as conduct which allows the defendant to develop a belief that the plaintiff will not be seeking to make any claim and to continue about their life dealing with their affairs in reliance on this belief. Wikipedia
In Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291 at para.  per McLure P considered:
"Whether the conduct of the plaintiff amounted to an acquiescence or caused the defendant to alter their position in reliance on the plaintiff’s acceptance of their actions”.
Consequently, a defendant may be able to argue the equitable defence of laches on a much shorter time frame than the relevant statutory limitation period.
For a detailed discussion please read our FAQ: What are the downsides to delaying 1️⃣ Informing the other side of my claim against them; or 2️⃣ Fling my claim with the Court?
If you are in doubt about anything mentioned above, it is always the right decision to contact our legal team with your queries.
Our above list is aimed to educate you regarding some of the most valuable hints + tips which will apply to assist you if you are unfamiliar in dealing with legal matters.
Once you have acquainted yourself with all of the above, we trust that you will be excited to learn + discover more about how we can work together to meet your current + future legal + business needs as we all navigate these uncharted post-COVID pandemic waters.
This article was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
This article is intended for general interest and information only. It is not legal advice and nor should it be relied upon or used as such. Always consult a lawyer for specialist advice specific to your needs and circumstances.