Law of Contracts – Part 23
Enforcing Your Contract: Homework – What To Do Before You Go Ahead.
By Adv Louis Nel.
(For a summary on this series see end of article).
THE NEXT STEP I.E. STEP 4 IS TO CONSIDER WHO TO CONSULT (REFRESHER: STEP 1 WAS/HOW ENFORCEABLE IS YOUR CONTRACT; STEP 2 WAS/HAVE THE REQUISITES BEEN MET; STEP 3 THE IMPACT]
In Part 22 we discussed the various parties that litigation would impact upon. Let’s now consider the parties you should consult in the process of deciding whether or not you should proceed with litigation, which decision must be taken at management (Board, if applicable) level.
The first must be legal but before your proceed in that regard, you MUST advise your insurer IMMEDIATELY, especially if you are not suing but being sued – the minute you receive a letter of demand or a summons is served upon your business, your policy requires you to advice your insurer forthwith, failing which you may void your policy! Furthermore they may well supervise or manage the entire process discussed below as they usually have their own preferred (external) ‘legal team’, although will or should still work hand-in-hand with your internal legal advisor.
The next must be legal. This will mean different things to different businesses as some will have an in-house legal advisor and others not. Such a person will have an intimate knowledge of more than just legal issues and will apply all the different disciplines and consult all the separate operations in arriving at a final decision as it is imperative not make such a decision in isolation. As such a person is a salaried employee, it may lead to a material cost saving as practising attorneys (solicitors) and advocates (barristers) will demand a substantial deposit.
Once such an internal decision has been made or if the business does not employ a legal advisor or have an internal advisor, the next step would be to consult with external attorneys and they may well suggest appointing an advocate (Counsel), which in turn may requiring the appointment of a senior (long standing) advocate and a junior.
You can well imagine the fees so I strongly advise that you request these parties to provide you with the following: advice on evidence (be it documentary requirements or which persons or experts to call as witnesses) and advice on the merits (effectively your chances of success). The latter may well be positive but if some of the crucial evidence (a document may be missing or you may not be able to trace/get hold of a key witness) is not available, you may well reconsider proceeding – it is like having a first class rifle with poor ammunition! Times have changed and if the outcome of both these enquiries are positive, don’t feel shy to ask for a fee estimate!
Once you’ve decided to proceed and have a fee estimate, engage your finance department about available funds. Such a discussion must not only focus on the legal fees but also travel and accommodation costs and the fees of experts that may have to be summoned.
Once the above is done and dusted, if not simultaneously, engage with your marketing and/or PR department/firm – as discussed in an earlier part of this series on contracts, brand management is crucial so you want to pre-empt the rumour mongering/grapevine ASAP. I know of such firms who have various template responses ready so that press releases can be dealt with promptly.
Finally consulting with your human resources regarding such matters as internal communications and staff leave i.e. current or future applications for leave of employees who may be called as witnesses.
To be continued in Part 24.
Disclaimer: This article is intended to provide a brief overview of legal matters pertaining to the tadventure tourism industry and is not intended as legal advice. © Adv Louis Nel, ‘Louis The Lawyer’, November 2016.
- In Part 1 (Aug 2014), I categorised risk into five categories, namely; 1. PEOPLE, 2. MONEY, 3. LAW, 4. SERVICE and 5. ECOLOGY. In this series, I deal with the risk profile of each, i.e. broadly speaking the areas of risk that any business is exposed to can been allocated under these five categories.
- Part 2, (Sep 2014) covered the category of ‘People’ under four sub-categories: Staff (discussed in Part 1); Third party service providers (‘TPSP’); and Business Associates.
- Part 3 (Oct 2014), continued with ‘PEOPLE’ as Customers.
- Part 4 (Nov 2014), started the discussion on the 2nd category, namely ‘MONEY’ in terms of CASH and CHEQUES.
- Part 5 (Dec 2014), looked at CREDIT and CREDIT CARDS.
- Part 6 (Jan 2015), looked at LAW and CONTRACTS, with an introduction and Requisite #1: Offer & Acceptance.
- Part 7 (Feb 2015), continued with Requisite #1 covering telephone enquiries, e-mails, websites and advertising.
- Part 8 (Mar 2015), covered Requisites #2: Legally Binding Obligation, and #3: Consensus in contracts.
- Part 9 (Apr 2015), covered Requisite #4: Performance Must Be Possible.
- Part 10 (May 2015), covered Requisites #5 & 6: Performance Must Be Permissible, and Capacity of the Contracting Parties.
- Part 11 (Jun 2015), continued with Requisites #6: Capacity of the Contracting Parties.
- Part 12 (July 2015), covered Requisite #7” Negotiating a Contract.
- Part 13 (Aug 2015), covered Requisite #8 Drafting a Contract.
- Part 14 (Oct 2015), covered Requisite #9 Contract Management.
- Part 15 (Nov 2015), covered Requisite #10 Enforcing Your Contract – Part 1.
- Part 16 (Dec 2015), Requisite #10 Enforcing Your Contract: Requisites (continued-1)
- Part 17 (Jan 2016), Requisite #10 Enforcing Your Contract: Requisites (continued-2)
- Part 18 (May 2016), Requisite #10 Enforcing Your Contract: Requisites (continued-3)
- Part 19 (Jun 2016), Requisite #10 Enforcing Your Contract: Requisites (continued-4).
- Part 20 (Jul 2016), Requisite #10 Enforcing Your Contract: Requisites (continued-5).
- Part 21 (Sep 2016), Enforcing a Contract: the 8th & final question.
- Part 22 (Oct 2016), Enforcing a Contract: Step 3 – Impact on your Business.