Capsizing a winning vessel

There are many matters to consider before deciding to countersue and knowing when to quit while you’re ahead could do you more good than damage.

LITIGATION provides an avenue and an opportunity for asserting a right in a civilised way when differences arise and there is no other way the parties can resolve the dispute which has arisen between them.

In some cases, one party actually secures a victory over the other, but there are many cases where there is no real winner. This is a matter that parties who propose to embark upon litigation should be aware of.

In this regard, the matter has to be viewed from two different angles. One is the person who commences the action in court, ordinarily referred to as the plaintiff.

If he did not commence the action, the matter would not be in court to start with. In this regard, the party that is sued, referred to as the defendant, is forcibly drawn into the arena of litigation.

If proceedings are filed, the defendant has no choice but to defend.

In view of this, a reader asks if and when he succeeds – meaning that the claim against him is dismissed – can he countersue the plaintiff for wrongfully suing him and causing him the expenses, incovenience and time spent?

Blue moon

Unfortunately, the defendant cannot countersue the plaintiff unless it is an instance of malicious prosecution.

This, of course, involves considerably exceptional situations and one seldom comes across such cases.

But what about the legal costs incurred? In the ordinary course of events, a successful party would – in principle – be awarded costs against the unsuccessful party.

However, the costs awarded may not necessarily be the same as what a defendant has paid his lawyers. Sometimes the costs awarded may fully reimburse him; in other cases, there may be a shortfall.

Therefore, a successful defendant will not even end up being reimbursed for the time and other expenses spent, what more being compensated for distress and inconvenience and perhaps the trauma that is experienced.

In fact, he may even lose in money or kind. More often than not, what he will pay his lawyers will be much more than the legal cost he recovers from the other side.

This, unfortunately, is the way the administration of justice is structured. And this is understandable. This is because if such claims were allowed, there would be protracted litigation. In every case where a defendant succeeds, there will be another suit against the plaintiff.

What if the defendant fails? Will there be another suit? The law puts an end to it through the award of costs.

On the other hand, the plaintiff could face the same or near similar situation. Anyone can file an action in court and the summons will be accepted for filing as long as the requisite filing fee is paid and it is drawn up in the correct prescribed form.

If the claim is clearly and obviously without

The defendant cannot countersue the plaintiff unless it is an instance of malicious prosecution. This, of course, involves considerably exceptional situations and one seldom comes across such cases

merits, it is for the defendant to apply to strike it out at an early stage.

Otherwise, the matter will be dealt with in the usual way.

But even when a plaintiff succeeds in asserting the rights which he claims, there are two other important parts in the context of such proceedings.

One is establishing whether a party has a right which the court recognises; the other aspect is the compensation that the aggrieved party or a party that considers itself to be wronged is entitled to (deciding on liability) and what the amount of compensation should be (determining the quantum).

If the court finds that there is a breach but no real damage whatsoever is suffered, the plaintiff may fail to get any damages or only recover nominal damages.

Furthermore, even if a party wins the case, the court may, in its discretion, not award any costs and ask each party to bear its own costs.

The plaintiff may rightfully succeed in its claim and be awarded substantial damages and costs.

Monetary cost

However, the defendant may not have the money to pay or own any assets. In this case, the plaintiff could make the defendant, if an individual, a bankrupt, and if a company, wind up.

The result, of course, will be that not only will the amount awarded not be recovered but additional and further costs will be incurred in the bankruptcy or winding-up.

Therefore, one needs to give careful thought before embarking on litigation as it can be costly. This is especially so at the individual and personal level. Money whether recovered or not or further loss may not be an issue at the corporate level. But even then time and resources are involved.

There are situations where one has no choice but to go to court. This is especially so when personal rights are involved and infringed upon and the actions of the other party cannot be tolerated.

This, of course, involves making a choice and living with it.