LITIGATION PRIMER
RESPONDING TO A NOTICE OF CIVIL CLAIM
Litigation begins with a Notice of Civil Claim or Notice of Claim. A Notice of Civil Claim is a lawsuit that is filed in the Supreme Court of BC. The party that initiates the lawsuit is the plaintiff and the party that responds to the action is the defendant.
If you have received a Notice of Civil Claim, it is important to respond to its in a timely manner as responses are time sensitive.
What Should I include in my Response to a Notice of Civil Claim?
In responding to a Notice of Civil Claim, it is important to determine whether you accept or reject the claim- either in whole or in part. If you wholly accept the admissions made by the plaintiff, you can respond to the claim by filing a Form 2 (Response to Civil Claim) and by consenting to the relief sought by the plaintiff.
If you reject the admission made by the plaintiff, you would complete the same Form 2, but ensure that you provide reasons for rejecting the admission, providing your facts of the dispute and responding to the relief sought by the plaintiff.
If you believe you have a case against the plaintiff, you can also file a counterclaim.
In most cases, a response to a Notice of Civil Claim requires extensive research and review of the documents governing the dispute.
Regardless of how you respond to a Notice of Civil Claim, it is important to seek assistance with your response sooner rather than later, as there are important time limits that may affect the outcome of the dispute.
COURT EXPENSES AND COSTS
Court costs regard the court-ordered payment of expenses from one party to another.
Interest
In British Columbia, the Court Order Interest Act permits an award of pre- and post judgment interest on judgments awarded in the favour of the plaintiff. The Court Rules Act B.C. Reg. 168/2009 (Supreme Court Civil Rules) is another statute that discusses interest awards. In the event of a civil case involving a creditor and a debtor, the creditor may also be entitled to pre and post-judgment interest on financial awards.
The interest rates for money judgments depends on the Bank of Canada’s interest rates. Having said that, courts have the discretion to vary the interest rate in certain circumstances.
Costs
Costs are a financial award that is based on a party’s legal expenses (including legal representation and disbursements). In the Supreme Court and most provincial courts, judges have the power to pass a judgment rewarding the requesting parties’ legal costs. In general, the losing party must pay the winning party’s legal costs.
Costs are paid out in determination of fixed costs presented by the winning party or they are reviewed by an assessment officer. In certain situations, the costs of a motion depend on whether the winner of the motion succeeds at trial. For this reason, and others, costs are paid at the conclusion of a case.
Quantum Awards
While a court may rule in favour of awarding a winning party its requested costs, the entire amount requested may not be awarded. For instance, a successful litigant may receive an award of costs on a partial indemnity measure that allows for a certain percentage of total legal expenses requested.
In some cases, costs are awarded on a substantial indemnity scale. As these cases are exceptional, it is unlikely that 100% of costs will be awarded on a substantial indemnity scale. Exceptional circumstances include a breach of trust, contemptuous behaviour, or fraudulent conduct. In cases where the attorney is guilty of improper conduct, the court may order the attorney to personally remunerate some or all of the costs to the plaintiff or requesting party.
In certain circumstances, security of costs may be requested. Security for a defendant’s legal costs at trial or appeal ensure that the defendant is able to pay the costs awarded to the successful litigant. Security may take the form of cash, a letter of credit or a surety bond.
For more information on court-awarded costs, expenses, and awards, get in touch with one of our litigation attorneys.
DISCOVERY PROCESS
Discovery is the process by which each party discloses to the other, the documents that will be relied upon during trial. In some jurisdictions in Canada, parties to an action may draft a discovery plan indicating how witnesses will be examined and how documents will be produced.
A document entitled a List of Documents or LOD must be produced prior to trial. Once the LOD has been drafted, it must be served. The plaintiff must serve the LOD to the defendant and the defendant must serve his or her LOD to the plaintiff.
As the LOD requires continuous disclosure, it is important to amend your LOD is required, if you no longer have possession of the listed documents, if you have mislabeled your LOD, or if you no longer intend to use the documents you have listed.
Unless you disclose a document in your LOD, you cannot rely on it in trial. The only exception to this rule is if the document is a public record or document.
If there are documents that are subject to attorney-client privilege, such privilege must be indicated on the LOD. If one party challenges privilege over a document, a motion may be filed to uncover the documents in question.
It is important to provide continuous disclosure and adhere to LOD deadlines as failure to adhere to Court rules may result in sanctions. For further information on LODs, contact one of our litigation attorneys.
PLEADINGS, MOTIONS & CHECKLISTS
In litigation, there are a number of actions taken to either support your case, request extensions on certain matters, or compel a party to do something. Pleadings and motions are some of the ways in which a party can manage a case strategically and effectively
What is a Pleading?
A pleading is the section of a lawsuit that outlines the facts, laws, and precedent that a party relies on. A pleading can take on a number or different forms: (i) an Application, (ii) Statement of Claim, and (iii) Notice of Action. In similar jurisdictions, pleadings are divided into petitions, statements of defence and statements of claim.
In responding to a statement of claim, a defendant, in response to the statement of claim, would file a statement of defence. A statement of defence can include a counterclaim in which the defendant files a suit against the plaintiff.
What is a Motion?
A motion is a formal request made to the court. The request could compel the other party to do something. A party can also request that the court takes a specific action with respect to the case.
Motions also address requests to amend pleadings, requests to the court to rule on complex issues or proceedings, and requests to contest matters brought up by the other party.
Checklists
Checklists streamline your case when used properly. Checklists will ensure that statutory deadlines are met, appropriate disclosures are made, and correct forms and documents are filed.
Checklists also assist with putting together the composition of a trial or hearing, including the factum and book of authorities.
For more information on court proceedings, get in touch with one of our litigation attorneys.
LEGAL ANALYSIS
Legal analysis involves the application of law to the facts of a case. In applying legal analysis to your case, it is important to clearly indicate why you are relying on the authority of that case and the relevance that the case has to your own case. If the case you’re relying on is not directly applicable to your own submission, it is best not to use that particular case. It is also important to note that while there may be similarities between the cases you wish to use and your case, you need to delve further to properly analysing the case law in a way that draws out recognized principles.
Before embarking on your quest to bolster your case with legal evidence, it is important to create a map of how you wish to argue your points.
Conducting your legal analysis effectively means that you are highlighting the most material facts of your case in order to achieve your purpose and objectives in filing your lawsuit.
Clear and concise legal analysis will allow you to present your case more effectively and it will also build the foundation for persuasive advocacy.
In applying legal analysis to your case, it is important to write concisely. Often times, writing concisely is more difficult than writing at length. Writing concisely means briefly outlining the pertinent facts and principles underlying the cases you’re relying on, and directly applying those legal principles to your own case. Tangentially describing the facts of a similar case is counter to this principle.
As legal analysis may pose complex challenges, it is important to seek the counsel of an attorney that can help you drive your point forward. Contact one of our legal representatives today.
