Should You Sue? 8 Things to Think About Before Suing
So someone has done you wrong and you want to sue them. However, there are a number of questions you need to think about when deciding whether it’s actually worth investing the time and money to do so.
Here are 8 of them.
1. Do you have a contract with the adverse party that allows you to sue in Singapore in the first place?
If you are suing over a breach of contract, your contract may prescribe the exclusive forum for the resolution of any disputes arising out of or in relation to that contract, and that forum may not be the courts of Singapore. Instead, it could be arbitration or the foreign courts.
2. Is there a cheaper or faster way than litigation to resolve your dispute with the adverse party?
Consider mediation. It can often resolve disputes in a day and get you enough of what you want to be worth avoiding a long, drawn-out court battle.
Sometimes where you don’t actually need to recover any damages, your objectives in suing someone can be met without spending any money on your part by simply making a report to the relevant regulatory body or law enforcement agency.
3. Do you have a valid claim and are you likely to provoke a valid counterclaim by suing?
You should ideally have a lawyer look at your case before you file it to make sure that you have a reasonable chance of success in court in the first place.
You should also consider whether the facts of your case might allow the adverse party to bring a counterclaim against you. If so, and the adverse party hasn’t sued you yet, you may wish to let your claim go in the hope that your adverse party will do the same.
If you decide to go ahead with your claim, your adverse party will almost certainly file a counterclaim. However if both of you wait for the other party to make the first move, nobody will sue and everyone can get on with their lives.
4. How well-resourced is your adverse party?
If you are suing a massive company like a bank, telecommunications provider or airline, they will probably have deeper pockets than you to pay lawyers who can drag out the matter for years, even if you are legally right.
If so, you may run out of money to continue fighting the case before they do.
If your claim is a small one, they may well just pay it. However, if your claim could set a precedent that all their customers or partners could exploit in the future, they may well fight your claim tooth and nail although it’s small.
5. Can you afford to lose?
No matter how strong a claim you may think you have, nothing is guaranteed and defeat can all too often be snatched from the jaws of victory on some unfortunate technicality.
You need to think not just of the money you stand to win but also consider how much more you stand to lose on legal fees if you are ultimately unsuccessful.
If your lawyer highlights any serious weaknesses in your case to you, have a hard think about whether pursuing that claim may really just be throwing good money after bad.
6. If you win, does your adverse party have the money to pay, or enough assets that can be sold, to pay you?
There is no point suing someone who doesn’t have the money to pay you if you win.
If that person or company still has assets, then you may be able to enforce any award you secure by getting an order to force the sale of those assets to pay your debt. However, you will need to factor in the additional legal fees involved in getting such an order before you start the lawsuit.
Most of all, if your adverse party is a bankrupt individual or an insolvent company, you may want to temper your expectations in terms of how much of your debt you can realistically expect to recover.
Get advice from your lawyer on this and consider whether the amount you’re likely to recover may ultimately be less than the legal fees it will cost to recover it.
7. If you win, will there be much money left after you have paid your legal fees?
Try to get a rough estimate from your lawyer of the range of total legal fees to bring a case all the way through a trial to enforcing an award. Then, compare this amount with the amount you are suing for.
If that amount is so low that there’s not much left after deducting those legal fees, consider whether this remainder is worth the time and effort you may need to put in over the next year or two to actually get the money to sue.
8. Is your adverse party and its assets in Singapore or elsewhere?
If your adverse party is not in Singapore, you’ll need to apply for leave to serve them with process overseas.
First, this means knowing exactly where to find them overseas to do that. Also, serving an adverse party overseas to the satisfaction of the Singapore courts can be difficult and you may need to engage a process server in that jurisdiction to do so.
Even if you do successfully serve the adverse party, they may simply choose to ignore it and not file a notice of intention to contest or not contest.
If this happens, the Singapore court can enter default judgment in your favour. However, enforcing that order in the jurisdiction in which the adverse party is located may be difficult. Depending on that jurisdiction’s laws, they may not recognise the default judgment and insist on rehearing the case.
Separately, even if the adverse party is located in Singapore, if most of its assets are in another country, you may need to enforce any award you obtain in that country anyway, where you may encounter the same difficulties discussed above.
If these will be issues for you, it may be worth considering suing in the jurisdiction in which the adverse party or its assets are located instead. However, you would need to get legal advice from a lawyer in that jurisdiction on the local law there and your chances of success.
As a whole, if your adverse party or its assets are located outside Singapore, you should start by seeking legal advice in Singapore so that a lawyer can evaluate all these issues and advise you on the best course of action.
Litigation is like a very complex game with many rules. Hopefully, the 8 issues highlighted above have underlined the point that having a strong case is only the very first of several requirements to launch a successful legal claim against another party.
The decision to sue should be a highly strategic and carefully considered one. You should make sure that your lawyer advises you on all of the above before you decide to pull the trigger on filing a suit.
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