Count all of the costs

Like there is a cost of doing business there is a cost to litigating.

The courthouse is not a place you just rush to “to get your pound of flesh”, “make the other party pay” or “make an example of the other party” without considering the cost of the entire exercise.

Costs have what may be considered to be a different meaning, in the court setting, for those who may be unfamiliar. They are generally not equivalent to the legal fees/expenses incurred by a particular party.

Costs may be fixed, prescribed, budgeted, assessed or wasted. The applicability and the approach to quantifying each of these is provided for in the Trinidad & Tobago Civil Proceedings Rules (CPR) or has been determined in various cases.

Traditionally, costs would follow the event i.e. the unsuccessful party would pay the successful party’s costs. But now, the Court has the discretion to determine who should pay costs. The Court can engage in issue-based analysis to determine where costs should fall by considering – the conduct of the parties, a party’s success on particular issues, settlement offers etc.

Our CPR also stipulates that a party may not recover costs except by order of the Court, CPR provision or via agreement between the parties. The Court may award:

  • No costs or parties bear their own costs
  • A particular amount with respect to another party’s costs
  • Costs in relation to a specific part of the proceedings
  • Costs from or until a particular date
In the more general sense of the word:

A phrase which is often used is, “The candle costs more than the funeral.” This occurs if the cost of bringing the action outstripped the amount of money a successful party actually recovered at the end of the matter.

This phrase is often used as a warning to litigants who sue without contemplating the cost of the exercise; and at the end of the matter they are sorely disappointed.

��� Litigation can be inevitable sometimes and it has its place. However, as a lot of litigation is a marathon; not a spirit, it may be prudent before initiating Court action to do a cost benefit analysis and possibly consider the opportunity cost and the time, energy and resources that need to be allocated for the duration of a court matter.

��� Corporates, high-profile persons and professionals consider whether there are any reputational costs? Is it worth it? Will a Gag Order or Sealing Order provide an adequate amount of protection from disclosure to prevent reputational harm?

Before taking it to Court, please properly count all of the costs!

 

For further information:

https://tenorequelegalandconsulting.com/take-it-to-the-court-on-time/

 

When can we sign? – The non est factum edition. ✒️

In a previous blog I shared about the importance of reading and understanding what you are signing; because a person is usually bound by their signature to a document (save and except in certain circumstances).

The essence of the principle of non est factum (it is not my deed) is that the person signing believed that the document that they signed had one character or effect where in fact its character or effect was quite different.

This principle (or plea) is not available to anyone who was content to sign without taking the trouble to try to find out the general effect of the document that they are signing (at the very least).

A document or Deed may be null, void and of no effect by reason of the party not knowing what they were signing. However, the elements of non est factum have to be proved.

For non est factum to succeed, the party must show that:

(a) he was under a disability

(b) the document which he had signed was fundamentally different from the document he thought he was signing; and

(c) he was not careless in that he had not failed to take proper precautions to ascertain the significance of the document he was signing – Lloyd’s Bank PLC v Waterhouse [1993] 2FLR 97

“Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature–by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences–then, if he does not take the trouble to read it but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented, to all those into whose hands it may come, that it is his document…” – Gallie v Lee and Another [1969] 1 All ER 1062 per Lord Denning at p.1072

“The plea (non est factum) cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document… But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such belief unless he had taken steps or been given information which gave him some grounds for his belief…” – Saunders v Anglia Building Society Limited [1970] 3 All ER 961, p. 961.

If the deed was not your deed at all:

  • You are not bound by the signature.
  • The document is a nullity.
  • No one can claim title under it, not even an innocent purchaser who bought on the faith of it, nor an innocent lender who lent their money on the faith of it. No matter that this innocent person acted in the utmost good faith, without notice of anything wrong, they take nothing by the document.

Gallie v Lee and Another [1969] 1 All ER 1062 per Lord Denning at pp. 1066 – 1067

 

For part one of  this topic: https://tenorequelegalandconsulting.com/when-can-we-sign/

⚖️ When can we sign? ⚖️

“When can we sign?”  is a  question that  has been asked of lawyers a million times over; because people can tend to be eager to rush to execute contracts, court documents, deeds, other documents etc.

But, did you really read and understand what is being said in the document – the fine print?

The other MAJOR question you should also be asking yourself, particularly in this time of heightened digital transacting and business – are you approaching execution safely and legally?

You may want to seriously consider and apply the following (which is not an exhaustive list):

��� Read and understand what you are signing. If you are unsure of the legal implications, seek legal counsel. (The principle of non est factum may not (always) be available. I will share more about that in another blog).

��� If Attorneys are not involved, at least make sure you execute safely and legally. Speak to experts who can guide you in this area if you are uncertain.

��� Guard your e-signature (particularly a basic electronic signature) with your life i.e. any scanned version, image or PDF of it. And this ought not to be in the custody of anyone other than you.

��� Do not copy and paste your e-signature into a MS Word document and then convert this MS Word document to a PDF. First convert the MS Word document to a PDF and then use the Fill and Sign option in Adobe to sign the document.

For part two of  of this topic:https://tenorequelegalandconsulting.com/when-can-we-sign-non-est-factum-edition/

⚖️Take it to the Court on time! ⚖️

Ascertaining the limitation period of a claim will determine whether a proposed claimant has a chance at bringing a claim; or if they are time barred altogether. It is important to take heed of and adhere to timelines for initiating court actions.

 

Limitation periods are provided for in limitation legislation (and/or in limitation related statutory provisions). While the Court has the power to override limitation periods based on its consideration of certain factors, one should make best efforts to take the matter to the Court on time!

 

Some examples of current limitation periods in Trinidad & Tobago

��� Simple contract – Action expires 4 years after the cause of action arose. [N/A to contract made by Deed].

 

��� Negligence, nuisance and other tort claims – Action expires 4 years after the cause of action arose.

 

��� Enforcement of Judgment – Action expires 12 years after the date of final judgment.

 

��� Enforcement of arbitrator’s award (under arbitration agreement) – Action expires after 4 years. [N/A to agreement made by Deed].

 

��� Workmen’s Compensation – Claim for the recovery to be made within 1 year from the occurrence of the accident (or, in case of death, from the time of death).

 

Where an adult workman receives compensation for injury by accident (arising at or in the course of employment) no action shall be brought against the employer for compensation independently of the Act after the expiration of 4 years from the date of the cause of action.

 

��� Judicial Review – Application to be made within 3 months from date the grounds for the application first arose.

 

��� Real Property Limitation – No person shall make an entry or distress, or bring an action to recover any land or rent, but within 16 years after the right of action accrued.

 

��� Remedies of Creditors – Judgments must be registered within 3 years from the date of the entry (and re-registered within 3 year intervals).

 

Further information can be found here: https://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/7.09.pdf

Limitation

Limitation is the legally defined time period in which (civil) court actions must be brought which varies depending on the nature of the claim.

 

Limitation periods are provided for in limitation legislation (and/or in limitation related statutory provisions) or the equivalent in different countries. One example from Trinidad & Tobago, is the Limitation of Certain of Actions Act, Chap 7:09.

 

To assess limitation, it is important to ascertain the date from which time starts to run in the particular claim.  For example in claims for money lent, it is critical to determine the date from which time starts to run by interpreting the loan agreement or equivalent document(s) which set out the lending terms.

 

Despite the fact that the Court has the power to override limitation periods based on its consideration of certain factors (see Section 9, Limitation of Certain Actions Act, Trinidad & Tobago), it is important to properly ascertain when a cause of action accrues, since a limitation defence is one of the primary defences that a Defendant can mount against a claim.

 

“In a claim for money lent, it is a matter of construction of the contract to determine the date from which time will run.

“If a time is stipulated for repayment, the limitation period will run from that time; if the agreement provides that the occurrence or non-occurrence of a particular event is to trigger the obligation to repay, time will run from the date of that occurrence or non-occurrence.”

“Where the contract, either expressly or by implication, provides that a demand by the creditor is a necessary prerequisite to the right to repayment, time will not start to run until such a demand is made.”

See Volume 68 Halsbury’s Laws of England, 5th edition, para 960.

Simple contracts include all contracts which are not contracts of record or contracts made under seal. See Civil Court Practice 2015 (The Green Book) Part III.

The cause of action accrues upon occurrence of the relevant breach and not the time of damage – Gibbs v Guild (1881) 8 QBD 296.

 

Where the parties remain in a contractual relationship and the breach consists of a failure to perform a contractual undertaking, time may not run until the date when the relevant obligation becomes impossible to perform – Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp [1979] Ch 384, [1978] 3 All ER 571.

 

Where anticipatory breach is accepted by an innocent party, then time will run from the date of such acceptance – Hochster v de la Tour (1853) 2 E & B 678.

But where the innocent party elects to wait for the time of performance then – so long as he remains ready, willing and able to perform his obligations under the contract – then time will run from the time when the other party’s performance was due, but was not provided, under the contract – Civil Court Practice 2015 (The Green Book) Part III.

 

Further information on this topic can be  found: https://tenorequelegalandconsulting.com/take-it-to-the-court-on-time/

or

https://rgd.legalaffairs.gov.tt/Laws2/Alphabetical_List/lawspdfs/7.09.pdf