Civil Post Trial Procedure - Remedies

Question 1

Remedy

Answer 1

A remedy is the plaintiff’s desired outcome in a civil trial. It is what the plaintiff claims as a result of the civil wrong that has occurred. If the plaintiff is successful, the court will normally award the plaintiff a remedy, which is the way a court enforces a plaintiff’s right, imposes a penalty on the defendant or makes some sort of order for the benefit of the plaintiff.

Question 2

General purpose of remedies

Answer 2

The general purpose of remedies is to restore the plaintiff to the position they were in before the wrong occurred.

Question 3

2 most common remedies

Answer 3

Various remedies are available in civil cases. The most common remedy sought is damages. Another common remedy is an injunction.

Question 4

Damages

Answer 4

A sum of money granted to the plaintiff, to be paid by the defendant, in satisfaction of a claim made by the plaintiff. The purpose is to compensate the plaintiff for losses. Different types of damages can be sought, including compensatory, exemplary, nominal and contemptuous damages.

Question 5

4 types of remedies

Answer 5

Compensatory

Exemplary

Nominal

Contemptuous

Question 6

Compensatory damages

Answer 6

The most common damages sought. The aim is to restore the party whose rights have been infringed to the position they were in before the infringement, by compensating them for losses. It may not be possible to do this in the physical sense, for example if a person has been left with a permanent injury, but damages can be given to make up for the fact that the person will suffer in the future.

Question 7

3 types of compensatory damages

Answer 7

Specific/Special

General

Aggravated

Question 8

Specific/special damages

Answer 8

Can be given a precise monetary value. These can be listed – such as medical expenses or loss of wages – and are easily quantifiable.

Question 9

General damages

Answer 9

Will be assessed by the court according to the magnitude of the wrong done and the long-term consequences of the wrong, taking into consideration such matters as future loss of wages, long-term job prospects, and pain and suffering (future and past). They are a general estimate and not readily quantifiable.

Question 10

Aggravated damages

Answer 10

Can be awarded to compensate the plaintiff further if the court believes that the defendant’s conduct injured the plaintiff’s feelings by causing humiliation and insult.

Question 11

Nominal damages

Answer 11

When nominal damages are awarded, a small amount of money is paid by way of damages. A plaintiff may be seeking to make a point about being legally in the right and to show that their rights had been infringed, but may not be seeking a large sum of money in compensation. Instead, the plaintiff might ask for only nominal damages.

Question 12

Contemptuous damages

Answer 12

A court might feel that the plaintiff has a legal right to damages, but does not have a moral right, that is, the plaintiff did not really deserve to be paid damages. In such a situation, small damages might be awarded to show contempt for the claim that is made, while admitting the plaintiff’s right to make the claim.

Question 13

Exemplary damages

Answer 13

Exemplary damages are the only consequence of a civil action that in some way seeks to punish the defendant for an extreme infringement of rights. Exemplary damages are also known as punitive damages or vindictive damages. The aim of exemplary damages is to punish and deter where conduct is wanton, malicious, violent, cruel, insolent or in scornful disregard of the plaintiff’s rights.

Question 14

Injunction

Answer 14

An injunction is a court order directing someone to stop doing something or to do something. The purpose of an injunction is to rectify a situation caused by the person who was found to be in the wrong.

Question 15

2 types of injunctions

Answer 15

Restrictive/prohibitive

Mandatory

Question 16

Restrictive/prohibitive injunction

Answer 16

An injunction ordering a person to stop (or refrain from) doing something (such as pulling down a building, or an ex-spouse visiting a child at school).

Question 17

Mandatory injunction

Answer 17

An injunction ordering a person to do a particular act, such as performing their part of a contract they have breached.

Question 18

What are the two types of injunctions that both restrictive/prohibitive injunctions and mandatory injunctions can be

Answer 18

Interlocutory

Perpetual

Question 19

Interlocutory injunction

Answer 19

An interlocutory injunction is a temporary injunction that is awarded quickly and in circumstances where there is an urgent situation and an injunction is needed as soon as possible.

Question 20

Perpetual injunction

Answer 20

At the final court hearing, the interlocutory injunction can become a perpetual (permanent) injunction, or it can be dismissed (overturned). A perpetual injunction can also be sought in a proceeding where an interlocutory injunction was not sought in the first place by the plaintiff, or was not granted by the court.

Question 21

4 purposes of damages

Answer 21

• to compensate the plaintiff for losses they have suffered such as payment of medical expenses (compensatory damages)
• for the plaintiff to make a point about being legally right and show their rights have been infringed (nominal damages)
• to show contempt for the claim that is made, while admitting the plaintiff’s right to make the claim (contemptuous damages)
• to punish the defendant for an extreme infringement of rights (exemplary damages)

Question 22

4 purposes of injunctions

Answer 22

• to rectify a situation caused by the person found to be in the wrong (General)
• to refrain someone from doing something (restrictive injunction)
• to order someone to do a particular act (mandatory injunction)
• to preserve the position of the parties until the final determination of the matter (interlocutory injunction)

Question 23

Costs and interest

Answer 23

Unsuccessful party may be ordered to pay the legal costs of the successful party. Judge decides if costs should be awarded against one of the parties. The costs that are usually awarded based on a scale of costs formulated by the law institute to be charged by a solicitor or barrister. Extra costs that are incurred between the solicitor and the client are usually not part of an award for costs.

Question 24

3 similarities between the purposes of civil and criminal pre trial

Answer 24

• They attempt to make the trial processes as efficient and fair as possible by ensuring the parties have access to the same information and documents. FAIR
• They provide the court with information about the case before it begins. PRE
• They might result in some issues being conceded or some charges being withdrawn before trial. WITHDRAWN

Question 25

3 differences between civil and criminal pre trial

Answer 25

* In a civil dispute, pre-trial procedures are used to clarify issues and let each party know the other party’s evidence. In a criminal case, pre-trial procedures are used to see whether there is sufficient evidence to support a conviction. PURPOSE * In a civil dispute, the defendant is required to discover relevant documents. In a criminal case, the accused does not have that obligation and may choose not to disclose any documents. DOCUMENTS * The accused may not be able to easily inspect documents and attend directions hearings in a criminal case if he or she is remanded in custody. In a civil case, this will not be an issue. REMAND

Question 26

Pre-trial procedures are designed to speed up the resolution of civil disputes. Comment on this statement In your answer describe one civil pre trial procedure.

Answer 26

Pre-trial procedures are designed to speed up civil disputes to an extent. An example of a pre-trial procedure is a pre-trial conference. This is where both parties and the judge attend a conference where the facts and reasons for the dispute, and the remedies, are looked at. This may also encourage an out of court settlement. In one way pre-trial procedures such as the pre- trial conference speed up resolution of disputes as they ensure both parties are prepared for trial, as well as clarifying what the issues are in dispute before trial to ensure that the trial does not address issues that both parties agree on. It also ensures that the parties are given every opportunity to settle before going to trial, therefore speeding up the resolution. On the other hand, the procedures slow down the time it takes to reach a resolution, because many of the procedures are complex and requires the involvement of lawyers. This may therefore delay the time it takes to reach a settlement.

Question 27

One of the purposes of damages as a civil remedy is to restore the plaintiff to the position that he or she was in before the wrong occurred. Discuss the extent to which damages achieve this purpose

Answer 27

Damages is one of the most popular remedies sought in a civil proceeding, mainly because in many circumstances it achieves the purpose of restoring the plaintiff to the position he or she was in before the wrong occurred. In cases where the plaintiff has lost money, or a good that can be replaced by money (for example, a dodgy boat), damages is a very appropriate remedy. However, in some circumstances does not adequately achieve the purpose of restoring the plaintiff to his or her original position. Where the plaintiff has lost something that is ‘irreplaceable’ – for example, a reputation, a limb, damages can only provide compensation which is considered ‘equal’ to that which is lost. Also, some things like pain and suffering or embarrassment, which is compensated by general damages, is difficult to estimate in terms of money. Finally, often damages is not enough to compensate the plaintiff for the time, inconvenience, cost and stress of having to go through a court hearing. Therefore, whilst damages to some extent and in some circumstances restores the plaintiff to the position that he or she was in before the wrong occurred, sometimes damages is inadequate to achieve this purpose.

Question 28

Interest on damages

Answer 28

If damages are awarded, the court will sometimes award interest to be paid on the amount of damages from the time the incident occurred. This is to compensate for the fact that if the plaintiff had been paid the money immediately after the incident, he or she would have been able to earn interest from a bank or elsewhere.

Question 29

Nominal damages example

Answer 29

In a case of defamation, nominal damages may be awarded when the plaintiff’s character has been maligned, but little damage has been done to the plaintiff’s reputation.