Commercial - Legal Practitioners' Liability Committee

Commercial litigation involves a broad spectrum of litigation matters and claims occur when acting for both plaintiff and defendant. The mistakes occur at the start of matter by not issuing proceedings in time or joining the wrong party or not adequately articulating the claim, then during the matter with long delays in moving the matter forward and then at the end with clients being unhappy with the settlement or judgement.

Articles
Resources
Practice Risk Guides
Checklists
Videos

Solicitors’ undertakings carry risk

Conveyancing, Leases, Professional Responsibility, Commercial 01 Mar 24

Only give undertakings when you can control and ensure compliance.

More changes at VCAT provide clarity

Commercial 13 Dec 23

Legislative changes address recent decisions regarding the extent of VCAT’s jurisdiction.

Advocates’ immunity and pleadings

Personal Injury, Commercial 03 Oct 23

Solicitors sued for omissions in pleadings were able to rely on the advocates’ immunity.

Beware inadvertent breaches of the Civil Procedure Act

Commercial 07 Jun 23

Keep your overarching obligations under the Civil Procedure Act front of mind.

The Civil Procedure Act 2010 (Vic) has had a significant impact on disputes and litigation in Victoria since its inception. Among other things, the Act has encouraged the willingness of Courts to investigate and inquire as to the conduct of practitioners in proceedings, including on the Court's own motion.

Jurisdiction and limitation changes at VCAT

Commercial 18 May 23

Recent decisions in the Supreme Court of Victoria and the Victorian Civil Administrative Tribunal (VCAT) have upturned assumptions about the extent of VCAT’s jurisdiction with wide-reaching implications for litigants and legal practitioners.

Don’t forget the clock is still ticking!

Professional Responsibility, Personal Injury, Commercial 16 Mar 23

It can be easy for parties in dispute to overlook limitation periods while settlement discussions are happening. This article covers some simple risk management measures parties can take to prevent their claim from being time barred and the practitioner also being faced with a professional negligence claim.

But counsel said so...

Personal Injury, Commercial, Professional Responsibility 18 May 22

Involving counsel is not a shield to a professional negligence claim.

The Harman obligation and avoiding contempt

Personal Injury, Commercial 11 Oct 21

Before using documents in a case, check whether they have been used in other proceedings and whether a release of the Harman obligation has been obtained.

Litigating with companies

Commercial 02 Sep 21

Basic company searches and alerts are underutilised tools in litigation. They are critical in identifying and monitoring the correct parties in proceedings and avoiding claims.

Acting in litigation

Commercial 05 Nov 20

Skipping litigation basics can land a practitioner in hot water. Here are some examples of when and where litigation can go wrong due to simple errors and failure to manage the legal issues, and the client looks to the practitioner to recover their loss.

Choose your litigation clients carefully

Personal Injury, Commercial, Engagement/retainer management 06 Mar 20

Choosing the right client is essential risk management, particularly in litigation where you need cooperation from clients to meet deadlines and clients need to listen to and have confidence in your advice at crucial stages along the way.

Litigate well – prepare early

Personal Injury, Commercial 10 Oct 19

Effective litigation practitioners prepare well and prepare early. A recent judgement in the Supreme Court of Victoria reinforced this message when an application for adjournment of a trial date was met with an indemnity cost order against the solicitors seeking the adjournment.

New ipso facto regime has commenced

Building and Construction, Building and Construction, Commercial 10 Aug 18

The amendments to the insolvency regime in the Corporations Act 2001 (Cwlth) to restrict the rights of parties to enforce ipso facto clauses in new contracts came into effect on 1 July 2018.

The trouble with DIY clients

Personal Injury, Commercial 13 Jul 18

Practitioners are finding that some clients are insisting on doing parts of litigation matters themselves, primarily to save legal costs. If you are prepared to accept a limited retainer, you need to manage the risks.

You need to take the good with the bad

Beneficiaries, Commercial 25 May 18

When acting in litigation, it is essential to take detailed instructions about any circumstances that weaken your client’s case in addition to those that support the case.

Why apologise?

Personal Injury, Commercial, Engagement/retainer management 01 Dec 17

This article looks at the difference between an admission of liability and an apology, and how an apology can be prepared in a form that does not amount to an admission of liability.

Litigating for nominal damages is risky

Commercial 12 May 17

Where a client wants to pursue a claim on a matter of principle for nominal damages, practitioners need to consider their overarching obligations under the Civil Procedure Act 2010 (Vic).

Stay on the right side of the line in mediations

Personal Injury, Commercial, Professional Responsibility 23 Jun 16

Tactics are an essential part of mediations as practitioners seek to reach an outcome favourable to their clients. However, there are legal and ethical limits to how far practitioners can go in settlement negotiations. Practitioners in mediations should be mindful of the provisions of Part 2.3 of the Civil Procedure Act 2010 (Vic) and section 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cwlth), known as The Australian Consumer Law.

Contractual rights to be unenforceable when linked to insolvency events

Commercial 23 Feb 16

The insolvency regime in the Corporations Act 2001 (Cwlth) has been amended to restrict the rights of parties to enforce ipso facto clauses in new contracts from the 1 July 2018 unless the amending Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cwlth) is proclaimed earlier.

Tax limitations

Conveyancing, Tax, GST, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Will Making, Powers of Attorney, Beneficiaries, Mortgages, Commercial 05 Jun 23

Time limits most commonly missed in relation to tax.

Bankruptcy limitations

Conveyancing, Tax, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Will Making, Beneficiaries, Mortgages, Personal Properties Securities, Solicitors Certificates, Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to bankruptcy.

Building actions limitations

Building and Construction, Commercial 05 Jun 23

Time limits most commonly missed in relation to building actions.

Aviation limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to avaition, a claim example and lessons learned.

Statutory demand limitations

Leases, Building and Construction, Sale and Purchase of Business, Building and Construction, Commercial 05 Jun 23

Time limits most commonly missed in relation to statutory demand, a claim example and lessons learned.

Contribution limitations

Conveyancing, Tax, GST, Leases, Sale and Purchase of Business, Building and Construction, Mortgages, Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to contributions.

Workers compensation limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to workers compensation.

Contracts limitations

Conveyancing, Tax, GST, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Mortgages, Personal Properties Securities, Commercial 05 Jun 23

Time limits most commonly missed in relation to contracts.

Confiscation limitations

Conveyancing, Commercial 05 Jun 23

Time limits most commonly missed in relation to confiscation, a claim example and lesson learned.

Appeals limitations

Conveyancing, Tax, GST, Leases, Building and Construction, Personal Properties Securities, Sale and Purchase of Business, GST, Building and Construction, Property settlements, Estate Administration, Mortgages, Personal Properties Securities, Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to appeals, a claim example and lessons learned.

Victims of crime limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to victims of crime, a claim example and lessons learned.

Personal injury limitations

Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to personal injury.

Unfair dismissal limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to unfair dismissal.

Transport accident limitations

Sale and Purchase of Business, Commercial 05 Jun 23

Time limits most commonly missed in relation to transport acccidents.

Instruments limitations

Conveyancing, Tax, GST, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Mortgages, Personal Properties Securities, Commercial 05 Jun 23

Time limits most commonly missed in relation to instruments, a claim example and lesson learned.

Trade mark limitations

Sale and Purchase of Business, Commercial 05 Jun 23

Time limits most commonly missed in relation to trade marks.

Migration limitations

Migration Law, Commercial 05 Jun 23

Time limits most commonly missed in relation to migration, a claim example and lessons learned.

Maritime law limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to maritime law.

Defamation limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to defamation limitations, a claim example and lesson learned.

Checklist for terms of settlement

Property settlements, Will Making, Estate Administration, Personal Injury, Commercial 23 Aug 21

This Checklist is designed to help solicitors and barristers ensure they have correctly addressed all of the relevant issues in terms of settlement. Using this checklist will help avoid the most common mistakes LPLC sees in terms of settlement that lead to claims. Barristers may find it useful to use this checklist alongside LPLC's Good Counsel – Practice Risk Guide for Barristers.

Barristers Checklist for Safe Practice

Property settlements, Will Making, Estate Administration, Personal Injury, Commercial 23 Aug 21

This checklist provides a list of risk management steps and issues to consider for various stages of any brief. Using this checklist will help barristers avoid claims and provide good service to their clients. This checklist can be used alongside LPLC's Good Counsel –Practice Risk Guide for Barristers.

Practice Risk Guides

Good Counsel – Practice Risk Guide for Barristers

Personal Injury, Commercial 19 Aug 21

This LPLC Practice Risk Guide provides details of the types of mistakes made by barristers based on the professional indemnity claims made in Victoria since LPLC began insuring barristers in 2005, and provides recommendations on how to avoid those mistakes. The guide also provides links to risk management checklists and at the end a list of cases relevant to conflicts, and personal costs orders.

Commercial litigation checklist

Commercial 07 Sep 20

Checklist to help practitoners manage risk in commercial litigation.

Practice Risk Guides

Commercial litigation - stay alert

Building and Construction, Building and Construction, Commercial, Professional Responsibility 07 Sep 20

This LPLC Practice Risk Guide provides examples of how things can go wrong in commercial litigation and how practitioners can minimise the risk of a claim. Managing the client's expectation during litigation is the key to containing risks in this area.

Practice Risk Guides

Good Counsel – Practice Risk Guide for Barristers

Personal Injury, Commercial 19 Aug 21

This LPLC Practice Risk Guide provides details of the types of mistakes made by barristers based on the professional indemnity claims made in Victoria since LPLC began insuring barristers in 2005, and provides recommendations on how to avoid those mistakes. The guide also provides links to risk management checklists and at the end a list of cases relevant to conflicts, and personal costs orders.

Practice Risk Guides

Commercial litigation - stay alert

Building and Construction, Building and Construction, Commercial, Professional Responsibility 07 Sep 20

This LPLC Practice Risk Guide provides examples of how things can go wrong in commercial litigation and how practitioners can minimise the risk of a claim. Managing the client's expectation during litigation is the key to containing risks in this area.

Tax limitations

Conveyancing, Tax, GST, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Will Making, Powers of Attorney, Beneficiaries, Mortgages, Commercial 05 Jun 23

Time limits most commonly missed in relation to tax.

Bankruptcy limitations

Conveyancing, Tax, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Will Making, Beneficiaries, Mortgages, Personal Properties Securities, Solicitors Certificates, Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to bankruptcy.

Building actions limitations

Building and Construction, Commercial 05 Jun 23

Time limits most commonly missed in relation to building actions.

Aviation limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to avaition, a claim example and lessons learned.

Statutory demand limitations

Leases, Building and Construction, Sale and Purchase of Business, Building and Construction, Commercial 05 Jun 23

Time limits most commonly missed in relation to statutory demand, a claim example and lessons learned.

Contribution limitations

Conveyancing, Tax, GST, Leases, Sale and Purchase of Business, Building and Construction, Mortgages, Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to contributions.

Workers compensation limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to workers compensation.

Contracts limitations

Conveyancing, Tax, GST, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Mortgages, Personal Properties Securities, Commercial 05 Jun 23

Time limits most commonly missed in relation to contracts.

Confiscation limitations

Conveyancing, Commercial 05 Jun 23

Time limits most commonly missed in relation to confiscation, a claim example and lesson learned.

Appeals limitations

Conveyancing, Tax, GST, Leases, Building and Construction, Personal Properties Securities, Sale and Purchase of Business, GST, Building and Construction, Property settlements, Estate Administration, Mortgages, Personal Properties Securities, Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to appeals, a claim example and lessons learned.

Victims of crime limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to victims of crime, a claim example and lessons learned.

Personal injury limitations

Personal Injury, Commercial 05 Jun 23

Time limits most commonly missed in relation to personal injury.

Unfair dismissal limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to unfair dismissal.

Transport accident limitations

Sale and Purchase of Business, Commercial 05 Jun 23

Time limits most commonly missed in relation to transport acccidents.

Instruments limitations

Conveyancing, Tax, GST, Leases, Personal Properties Securities, Sale and Purchase of Business, Building and Construction, Mortgages, Personal Properties Securities, Commercial 05 Jun 23

Time limits most commonly missed in relation to instruments, a claim example and lesson learned.

Trade mark limitations

Sale and Purchase of Business, Commercial 05 Jun 23

Time limits most commonly missed in relation to trade marks.

Migration limitations

Migration Law, Commercial 05 Jun 23

Time limits most commonly missed in relation to migration, a claim example and lessons learned.

Maritime law limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to maritime law.

Defamation limitations

Commercial 05 Jun 23

Time limits most commonly missed in relation to defamation limitations, a claim example and lesson learned.

Checklist for terms of settlement

Property settlements, Will Making, Estate Administration, Personal Injury, Commercial 23 Aug 21

This Checklist is designed to help solicitors and barristers ensure they have correctly addressed all of the relevant issues in terms of settlement. Using this checklist will help avoid the most common mistakes LPLC sees in terms of settlement that lead to claims. Barristers may find it useful to use this checklist alongside LPLC's Good Counsel – Practice Risk Guide for Barristers.

Barristers Checklist for Safe Practice

Property settlements, Will Making, Estate Administration, Personal Injury, Commercial 23 Aug 21

This checklist provides a list of risk management steps and issues to consider for various stages of any brief. Using this checklist will help barristers avoid claims and provide good service to their clients. This checklist can be used alongside LPLC's Good Counsel –Practice Risk Guide for Barristers.

Commercial litigation checklist

Commercial 07 Sep 20

Checklist to help practitoners manage risk in commercial litigation.

Avoiding Personal Cost Orders — do the basics well

Personal Injury, Commercial 23 Nov 23

Since the enactment of the Civil Procedure Act 2010 (Vic), legal practitioners face the risk of having a personal costs order brought against them. In the years following, there have been several important decisions on personal costs orders that provide insight on when they are likely to be ordered.

Commercial Litigation – Do the basics well

Commercial 29 Sep 22

Every year LPLC receives a large number of claims in relation to commercial litigation matters. Litigation can be a complex area to practice in, and many of these claims come from getting the basics wrong.

In this session Thanh Bui, Special Counsel in the Minter Ellison insurance team will provide guidance on what you need to do to get the basics right to avoid a claim.

Solicitor's certificates in unusual times

Commercial, Professional Responsibility 01 Jul 20

In this webinar LPLC's Chief Risk Manager, Heather Hibberd, explores the legislative requirements surrounding Solicitor’s Certificates, along with the risk management issues associated with using video conferencing technologies in the context of COVID-19 restrictions.

Back to basics for litigators

Personal Injury, Commercial 02 Jul 19

Seminar from 2019's Risk Management Intensive. Presented by Thanh Bui, Colin Biggers and Paisley.

The Harvard Diaries

Personal Injury, Commercial 01 Jul 18

Seminar from 2018's Risk Management Intensive. Presented by Emily Dewberry, Lawyer & Nationally Accredited Mediator Dewberry Mediations.

Conflicts

Conveyancing, Financial Agreements, Will Making, Personal Injury, Commercial, Verification of Identity, Engagement/retainer management, Professional Responsibility 25 Sep 17

Practitioners who act for multiple parties are often caught unaware by conflicts, which can be difficult to anticipate and arise before the danger becomes apparent. This leaves the practitioners exposed to allegations of breach of duty and the conduct rules, and preferring the interests of one client over another. In acting for more than one party, you create a minefield for yourself.

Litigation a la Carte

Commercial 23 Nov 15

This real claim scenario explores issues surrounding client selection, managing a difficult client, scoping work, risks associated with limited retainers (especially where the client has undertaken some the work) and taking a matter over part way through.

Accompanying this video is a trainer workbook resource to support legal practices to conduct their own in-house risk management training.

Get risk advice in Litigation work

+61 3 9672 3800 lplc@lplc.com.au