Taking Instructions in Civil Litigation PDF

TAKING OF INSTRUCTIONS IN CIVIL LITIGATION ggathu 2023 Sub topics a) Taking instructions and client –advocate interview and conferencing i. Establishment of a Retainer ii. Client interview and conferencing b) Legal opinion c) Decision to litigate or not to litigate d) Pre-litigation...

TAKING OF INSTRUCTIONS IN CIVIL LITIGATION ggathu 2023 Sub topics a) Taking instructions and client –advocate interview and conferencing i. Establishment of a Retainer ii. Client interview and conferencing b) Legal opinion c) Decision to litigate or not to litigate d) Pre-litigation preliminary considerations (i) cause of action (ii)limitation of actions (iii)feasibility of a law suit (iv)ethical considerations before taking up a case (v) ethical consideration after taking up a case e) Demand letter ggathu 2023  Overview of Civil Litigation What is Civil Litigation? What is Litigation -connotes settling courts and tribunals. See definition of the word litigation. Wide scope- Over simplification -every litigation that is not criminal litigation is civil. Usually one party (Plaintiff/Claimant/Petitioner/Applicant) seeks to obtain some favourable orders against another (Defendant/Respondent). The Defendant/Respondent usually seeks to avoid being compelled to do something he would rather not do eg pay a debt or to be restrained from doing something he wishes to do (e.g an injunction to prevent repossession) Is ADR litigation? Arbitration? Mediation? Conciliation? What is the major distinguishing factor between civil and criminal litigation? Punishment? Not really. It’s the process. ggathu 2023 Overview of Civil Litigation…cont’d Plaintiff/Claimant/Petitioner/Applicant is not under any obligation to litigate even when he has a good case. Can sleep on his rights. Defendant/Respondent equally is under no obligation to defend of course at the risk of having to bear the burden of the orders sought by the Plaintiff/Claimant/Petitioner/Applicant. Defendant can also voluntarily concede to the prayers sought by Plaintiff/Claimant/Petitioner/Applicant. ggathu 2023 Overview of Civil Litigation…cont’d Plaintiff/Claimant/Petitioner/Applicant can withdraw the suit at any time before final determination. Withdrawal may be subject to payment of costs to the Defendant/Respondent. Sometimes leave of the court may be required for withdrawal(Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 Rule 27 (1) (a) Right to litigate can sometimes be extinguished by statute. Limitation of actions in respect of torts? Contracts? Limitation of Actions Act Cap 22 Laws of Kenya. Limitation of actions in respect of torts? Contracts? Employment cases. Section 90 of Employment Act No. 11 of 2007 ggathu 2023  Taking instructions in Civil Litigation. ggathu 2023 Advocate-Client Relationship Who is a client? Section 2 Advocates Act. “client” includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs. ggathu 2023 Establishment of a Retainer Retainer-synonymous with employment, engagement or instruction (See Kalonzo Musyoka & Paul M. Wambua (Practicing As Musyoka & Wambua, Advocates) v Rustam Hira (Practicing as Rustam Hira, Advocate) eKLR). Retainer is the basis of a relationship between an Advocate and a client. Retainer/retainer agreement. Difference? Retainer doesn’t have to be in writing. Can be implied from the conduct of the client. (See Ochieng Onyango and Kibet & Ohaga Advocates v Akiba Bank Limited 1 EA 380) ggathu 2023 Establishment of a Retainer cont’d However, payment only may not constitute a retainer In Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited eKLR, the Advocate had been paid a sum of Kshs. 110,000/- which the client disputed was payment for legal fees while the Advocate indicated that it was part payment on his Bill of Costs. In the absence of any other evidence to show that there existed a retainer, the Court of Appeal held that payment alone could not be relied upon as a basis for establishing an Advocate client relationship. ggathu 2023 Establishment of a Retainer... cont’d Where a retainer is denied, the burden falls on the Advocate to prove the retainer on the balance of probabilities. (Robinson Kigen t/a Wesonga, Mutembei & Kigen Advocates v Sauth Mohamed & another eKLR and Ochieng Onyango and Kibet & Ohaga Advocates v Akiba Bank Limited 1 EA 380) What happens when an agent instructs an Advocate on behalf of a principal? Who is the client? In Nderitu & Partners Advocates V Mamuka Valuers (Management) Ltd eKLR the client instructed the Advocate on behalf of a principal. When the Advocate filed a Bill of Costs against it, the client objected on the basis that it was not the proper party to pay costs as it had disclosed from the onset that it was acting on behalf of someone else. The court held that the person who issues the instructions is liable to pay and it matters not that the instructions were given on behalf of someone else. ggathu 2023 Establishment of a Retainer... cont’d Tips Its good practice to have the retainer in writing. At least have some evidence in writing. Define exact instructions. Scope of work. Get paid. At least a deposit. Very important. Don’t undercut. Don’t overcharge. ggathu 2023 Client interview After establishing retainer, it is usually necessary to have a meeting with the client. Can be virtual (covid days) or physical. Importance of Client Interview. To gain clarity on the subject matter. To establish any incidence of conflict. To determine level of service necessary. Matter may be resolved after the first meeting or it may need representation in court. Client may not know what exactly he wants or may be confused. Professor google can be very confusing to laymen. Client may have erroneous views about lawyers based on past experiences, myths or popular portrayal of lawyers. Interview may help debunk these myths Client interview is very important for building mutual understanding and confidence. Especially for first time clients. The quality and nature of the future relationship is likely to be determined by the first interview. ggathu 2023 Client interview…cont’d Tips Lawyer should be relaxed and sincere. Not arrogant. Remember client may be nervous or embarrassed due to the nature of his case. You need to develop emotional intelligence to ensure the client opens up. Keep it professional. Clients are not your friends. Control the interview process. It should not take too long. What is the average attention span of a human adult? Be an active listener. Lawyers are generally not good listeners. Check out for non verbal communication. Understand human body language. Assure client of confidentiality. Use open ended questions except at later stages of the interview when seeking clarifications ggathu 2023 Client Interview…..cont’d Information to be obtained in a client interview Personal Information about client. Relevant or useful information. Age, name, next of kin or alternative contact etc. Pay attention to Data Protection Act. Information about other parties involved including potential witnesses. Information about the subject (legal) What the client wants Previous advice and assistance (Very important) Work to be done by lawyer Work to be done by client ggathu 2023  Essential preparations before client interview Determine if the interview is physical or virtual. Determine number of people to be present from both sides. Depends on brief. You don’t want to intimidate client or come across as incompetent. If physical, get a good interview room free from distractions. You may have to book an interview room in advance. Refreshments? Tissue. Water. If virtual, ensure stable consistent internet supply and enough hardware. Note taking materials. You can have an assistant take notes to avoid distractions ggathu 2023  Structure of Interview Client interview can be divided into three main stages The first main stage involves helping and enabling the client to tell the story naturally and is characterised by little speech on the part of the lawyer, other than encouragement. In the next stage of the interview the lawyer begins to take a more obviously active role, questioning the client on ambiguities or gaps in the factual details or gaining more depth of information on particular points. This is rounded off by the lawyer’s summing up of the major facts and the client’s wishes, to check with the client that they have been properly understood. Both lawyer and client generally participate about equally at this stage. The last stage Finally, the lawyer gives the advice or outlines the plan of action by “counselling” with the client all available options. The lawyer then makes sure that the client is in agreement, and begins to carry out the plan of action involved, setting the next contact before terminatin ggathu 2023  Structure of interview…..cont’d Can be divided into three main stages. Not cast in stone. Can be adapted to suit circumstances. Stage One 1. Greeting, seating and introductions. Firm handshake. (Fistbump?) Covid days. If virtual? Pay attention to social norms. Some people have undue regard for titles eg Dr. Dr. You may state your qualifications and experience. Walk in clients? Find out how they got to know about you. Helps in determining marketing strategies. Ask client to introduce themselves. Elicit story with prodding silence or a helpful question like What can I do for you today sir? Open ended question. Will elicit story from the client’s own words. ggathu 2023 Structure of interview…..cont’d Stage Two Summarize problem as you have understood it. Confirm with the client. Ask questions to fill in gaps, clarify ambiguities or filter relevance. Availability of documentation ggathu 2023 Structure of interview…..cont’d Stage Three State advice plan of action and confirm client’s agreement. Indicate follow up work to be done by client Indicate follow up work to be done by lawyer Agree on next contact between lawyer and client Asking if there is any other business and dealing with it Terminating, helping out and goodbyes. ggathu 2023 Legal Opinion Fact based. Facts will have been established at the point of taking instructions. You must understand the law to be able to give a legal opinion. You may need to research. Identify the subject area Identify the relevant area of law What are your sources of law? Constitution of Kenya. The laws of Kenya – what is the statutory law governing the problem? Case law –what have courts said? Common law – where the statutes and case law are unavailable Customary law Commentaries by authoritative writers ggathu 2023  Legal Opinion….cont’d Drafting the opinion. Use FIRAC (Legal writing and drafting) Facts Issue Rule Application Conclusion Write in simple language. Avoid legal jargon/latin which may serve to confuse the client more. Don’t load it with statutory and case citations. You may use a few. ggathu 2023 Pre litigation preliminary considerations Cause of action What is a cause of action:- DT Dobie & Co (K) Ltd V Muchina, KLR “A cause of action is an act on the part of the defendant which gives the plaintiff his cause of complaint.” Example: A pedestrian is walking on a pedestrian walkway when a matatu driven by a drunk driver with a suspended driving license loses control, veers off the road and hits the pedestrian. The pedestrian sustains injuries. What is the cause of action? ggathu 2023 Pre litigation preliminary considerations Reasonable Cause of action Cause of action has to be reasonable. Order 2 Rule 15 (1) (a) of CPR 2010. Pleadings may be struck out for not disclosing any reasonable cause of action or defence in law. What is a reasonable cause of action? A reasonable cause of action is not one that must succeed in the trial of the action but one which has some chance of success. Susan Rokih v Joyce Kandie & 6 others eKLR ggathu 2023 Limitation of actions. Statute extinguishing a right to bring an action. Main statute is the Limitation of Actions Act. Section 4 of the limitation of actions Act. What is the limitation period for:- torts? 3 yrs Libel? contracts? actions to enforce a recognizance? actions to enforce an award? actions to recover a sum recoverable by virtue of a written law, other than a penalty or forfeiture or sum by way of penalty or forfeiture; actions, including actions claiming equitable relief, for which no other period of limitation is provided by this Act or by any other written law. ggathu 2023 Limitation of actions cont… Action for an account? Judgment? Interest in respect of a judgment? Justus Ogada Agalo vs The Managing Director Kenya Railways Corporation (2016)eKLR An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of a written law may not be brought after the end of two years from the date on which the cause of action accrued. does not apply to a cause of action within the Admiralty jurisdiction of the court which is enforceable in rem, except that an action to recover seamen’s wages based on contract. ggathu 2023 Limitation of actions cont… Action to recover land section 7 Action to recover rent arrears section 8 Section 21-Action to recover the property of a deceased person Extension of time section 22. In some certain circumstances you may extend time. Limitation at section 27 (1) eg material damage claims Emmanuel Kidaho Ruhengeri v Sadry Dhala eKLR ggathu 2023  Limitation of actions cont John Abongo had an accident in 2016. His motor vehicle was hit from behind causing. He was injured. Unfortunately, he got into a coma from which he woke up in 2020. The vehicle was assessed and the cost of repairs came to Kshs. 500,000/-. He has fully recovered and now seeks your advice on the possibility of suing for damages and loses suffered. What is the cause of action? ggathu 2023 Limitation of actions cont Other statutes Employment Act-Limits to three years. Traditional judicial review? Order 53 CPR ggathu 2023 Feasibility of a law suit. Even though there is a cause of action which is not time barred a lawsuit is not always practical. Litigation takes a great deal of time and can cost a great deal of money, not only in advocate fees, but in costs. Before an advocate accepts a case, he should always review it to see if it is practical. For example, did you really suffer damages in a defamation suit? You may end up with a pyrric victory. ggathu 2023 Feasibility of a law suit Checklist Do you have the right parties eg How do you treat persons of unsound mind, minors? Identify the right court/tribunal with the relevant jurisdiction. Identify the nature of proceedings. How are you going to approach the court? Plaint, petition? Is there a cause of action? Is the cause of action extinguished by any statute of limitation? ggathu 2023 Ethical considerations before filing suit LSK Standards of Professional Practice and Ethical Conduct Competence and diligence-The Advocate is under a duty to provide the legal services in respect to which he/she is engaged competently, diligently and ethically. Failure to do so will be dealt with as professional misconduct. Undercutting/Charging unjustifiably high fees-The practice of undercutting, that is, charging less than the scale fees for professional services rendered, constitutes professional misconduct. At the same time, charging unjustifiably high fees, which is not commensurate with work done. ggathu 2023 Ethical considerations before filing suit…. cont. Conflict of interest-The Advocate shall not advise or represent both sides of a dispute and shall not act or continue to act in a matter when there is a conflicting interest, unless he/she makes adequate disclosure to the client(s) and obtains the client’s consent. Inappropriate use of social media, particularly in a manner that undermines the standing and dignity of the legal profession, is professional misconduct. Material and content drawn from social media sites may be taken into account by regulatory authorities in dealing with a charge of professional misconduct. ggathu 2023 Ethical considerations before filing suit The Advocate is an officer of the court and has a duty of fidelity to the law. Therefore the Advocate shall discharge his/her duty to represent the client in adversarial proceedings as well as in non-contentious matters by fair and honourable means and without illegality or subversion of the due processes of the law. The Advocate shall at times maintain the highest standards of honesty and integrity towards clients, the court, -colleagues, all with whom the Advocate has professional dealings - and the general public. Communication between the Advocate and client is protected by the rule on confidentiality of Advocate-client communication. The Advocate has a duty to keep confidential the information received from and advice given to the client. Unauthorized disclosure of client confidential information is professional misconduct. At the same time the Advocate has a duty to safeguard against the abuse ggathu 2023 of Advocate-client confidentiality to perpetrate illegal activity.  Ethical considerations after filing suit Client funds:-The Advocate shall not appropriate or convert any funds of the client held in trust or otherwise under the Advocate’s control without the express authority of the client. Any unauthorized appropriation or conversion is professional misconduct. The Advocate shall at times maintain the highest standards of honesty and integrity towards clients, the court, -colleagues, all with whom the Advocate has professional dealings - and the general public. ggathu 2023 Demand letter Letter before action/Notice of intention to sue. It is the starting point of litigation. Serves to notify the potential Defendant/Respondent of the case and give them a chance to comply hence avert litigation. Save on costs. ggathu 2023 Demand letter Statutory requirement? Section 13A of G.PA Act declared unconstitutional. Used to require that before suing the government you issue 30 days’ notice. (KENYA BUS SERVICE LTD & another v MINISTER FOR TRANSPORT & 2 others eKLR) Must you issue in all circumstances? Anton Piller orders? What if the potential Defendant destroys evidence? Not necessary if it will prejudice your case. See Stanley Kaunga Nkarichia v Meru Teachers College & another eKLR Can you be denied costs for not issuing a demand letter? (Joseph Oduor vs Kenya Red Cross Society eKLR) Stanley Kaunga Nkarichia v Meru Teachers College & another eKLR “ absence of or failure to issue notice of intention to suit is just one of the considerations that the court must take into account in awarding costs. If a court makes it the sole determinant factor, then, the said court must give good reason to deny the successful party his costs. ggathu 2023 Demand Letter cont Usual format:- The name and address of the writer (Letterhead) References ie file number The name and address of the recipient The date Mode of delivery eg registered post, email and whatsapp etc Salutation Subject line Body of the letter – Signing off ggathu 2023 Demand letter Should be addressed to the potential Defendant/Respondent in first instance. If there has been previous engagement with a potential Defendant/Respondent through a lawyer then demand letter can be addressed to such lawyer. Subject should be clear enough that it is a demand. Eg Demand for Kshs. 2,000,000/- owed to Mapesa Mingi. First paragraph should establish your mandate as your client’s Advocate. Next state facts. You may be brief and state only relevant, accurate facts. Make a legal conclusion from the facts then make a demand. Set out a timeline for compliance and state consequences of noncompliance. Sign off Don’t be rude. “Many cases have been won by courtesy and lost by rudeness.” Lord Denning. Be firm though. Check grammar, punctuation marks ggathu 2023 Demand letter cont.. Response to demand letter Basic structure is the same as the demand letter. First paragraph should establish basis of response. Next paragraph state reasons why you cant comply with demand or how you wish to comply with the same eg you can negotiate for more time to pay. You don’t have to deny everything. Without prejudice communication Why are letters marked as “Without Prejudice” Millicent Wambui v. Nairobi Botanica Gardening Limited eKLR ggathu 2023