Litigation

Litigation is the process of taking legal action.

Here, we set out some initial information for anyone involved in a dispute.

Disputes can be stressful. As civil litigators, we are referred clients by lawyers, other industry professionals, and the public in all manner of disputes - usually involving money. Clients often ask us two simple questions at the outset that have very complex answers: 1. What are my chances of sucess in litigating my dispute? 2. How much time and money is litigation going to cost? Success in Litigation The answer to the first question completely depends on your case. We often provide legal opinions to clients after an initial interview followed by subsequent research of the law and drafting formal advice. There is one matter that is applicable to every case - we cannot give guarantees or 100% assurances of success. Litigation is a process that is a 'grey area', in that we cannot know for certain how a court or other adjudicating organisation will rule. This is known as litigation risk and is further heightened in NZ by adverse costs typically being awarded in court cases against a party who loses their case, which means the successful party has a scaled portion of their legal costs reimbursed. However, the good news is that there are rules, principles, and legal precedent that courts and adjudicating organisations are bound to follow that can provide clear indications as to the prospects of success in most cases. We pride ourselves on practical and strategic advice to our clients that has a keen focus on our client's objectives to achieve the best outcome - whether that is courtroom litigation, alternative dispute resolution such as mediation, or simply advice that a dispute is not financially viable. Time and Money Civil litigation is usually expensive and, as professionals, we charge an hourly rate. The civil court process must be followed but which path your case takes depends on a number of factors - our clients' objectives, their opposition, third parties, and the court itself. The following is some initial indication (not to be considered legal advice) of the process of filing a normal civil claim in court if initial correspondence and alternative dispute resolution has not been successful: i. Filing a claim in the High Court or District Court, possibly including a summary judgment application that circumvents the other steps below and, if successful, judgment can be entered where there is no defence;
ii. Reviewing any Statement of Defence - note a judgment by default can be entered if no defence is filed;
iii. Case Management Conference - setting out interlocutory steps to trial, which can include: a. Discovery of documents; b. Any other interlocutory step required (eg. judicial settlement conference, security for costs, interrogatories, further particulars etc);
iv. Briefs of evidence - usually including preparation of an electronic case book; v. Written submissions;
vi. Attending Trial - can last for half a day up to several weeks, depending on the case;
vii. Receiving and enforcing judgment - there can be a significant variance in time and cost of a judgment being paid, depending on whether the judgment debtor pays or not. If payment is not made, then the court has a number of enforcement options (such as asset sale or bankruptcy) that can be pursued. Unfortunately that is another factor for clients in assessing the time and cost of litigation.

At McKenna King, we work with our client and regularly breakdown the costs of each step in the civil litigation process. While acknowledging that litigation has inherent risk and uncertainty, we provide our clients with practical and strategic advice so our clients have as much certainty as possible in assessing the time and cost of litigation.
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07 839 5315

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