Considering litigation? New pre-issuing requirements apply
As of 1 January 2011, the landscape of civil litigation has changed dramatically. With the introduction of the new Civil Procedure Act 2010 (“the Act”), disputing parties are now subject to new and more rigorous obligations in the lead up to commencing court action.
The Act introduces a number of overarching obligations with which all parties, solicitors and firms must comply. These include obligations:
- To act honestly at all times in relation to the dispute;
- To not make claims or responses that are frivolous, vexatious, an abuse of process or do not have a proper legal or factual basis;
- To not engage in misleading or deceptive conduct in relation to the dispute;
- To ensure that costs incurred are reasonable and proportionate;
- To act promptly and minimise delay; and
- To disclose to the other party all documents critical to resolution of the dispute.
The Act ultimately aims to curtail game-playing and delay tactics, as well as correct the power imbalance between litigants, according to former Attorney General Rob Hulls.
There will be serious consequences, ranging from adverse costs awards to procedural implications, for parties who fail to comply with the new requirements.
Compliance with these obligations has not, nor will it be, an issue for MST or its clients as they merely confirm the proper and ethical approach to resolving disputes and conducting litigation. Having seen many cases where litigants with “deep pockets” have sought to quash their less financial opponent through cost increasing and stalling tactics, we are pleased that Parliament has now seen fit to entrench overarching obligations into law and allow courts to impose penalties for breach.
Furthermore, the Act has introduced pre-litigation requirements which compel parties to take reasonable steps to resolve the dispute or clarify and narrow the issues in dispute before commencing court proceedings. These requirements apply equally to complainants and respondents in all civil matters. These requirements are subject to an amending Bill currently before State Parliament. MST will update readers on the status of this amending Bill once an outcome is known.
We invite any reader who has a civil dispute or is considering taking legal action, to consult a member of our Dispute Resolution & Litigation team to ensure their rights are not jeopardised by failure to comply with this new legislation.
Author: Louise Tolson