Claims
Chances of Success: What does it mean?
The phrase “chances of success” (also sometimes referred to as “prospects of success”) might come up a few times before, during or even after legal proceedings. For example, Jane wants to claim damages from the first person she sees after noticing her car got scratched in the parking lot. She did not see it happening, she does not know who did it, there are no witnesses, and there are no security cameras. In this instance, it might be said that she does not have good chances of success to claim damages from the first person she sees.
What is meant by chances of success?
This term refers to the chances a person will have in succeeding with his/her legal matter. The facts of the matter, the available evidence and the relevant legal principles will be considered when making an assessment of whether a person will reasonably win or lose a legal matter. If a person's chances of winning a legal matter are better than losing it, it can be said that there are chances of success.
What is also important to note is that in criminal matters, an accused is innocent until proven guilty. This means that the duty is on the State to prove beyond a reasonable doubt that a person charged for allegedly committing a crime is guilty. In civil matters, the onus is generally on the person who wants to claim something from someone else to prove his/her case on a balance of probability.
In respect of the scenario above, Jane wants to claim damages from someone she suspects might have scratched her car. Considering the onus of proof, Jane must prove that the person scratched her car. Unfortunately, Jane does not have enough evidence to support her claim. She can continue to claim damages, however, the chances of success are quite low if she cannot reasonably prove that the person scratched her car. Jane's chances of success would have been better if she had stronger evidence, such as an eye witness or security camera footage indicating that the person scratched her car.
Legal professionals or risk and claims assessors are capable of looking at the facts and evidence of a matter to establish the chances of success. However, it is possible that one person might come to a different conclusion than another. This is also something seen in South African courts where one court comes to a different conclusion than another in respect of the same matter. This is why South African law allows for options to appeal or review a decision of a court. This legal principle is often applied in other procedures as well, for example, in insurance policies.
If your matter was repudiated on the basis that there are no chances of success, can you appeal the decision?
In terms of Section 14 of the LegalWise Membership Agreement, the Member has the right to submit a written objection within 90 days of receipt of LegalWise repudiating the claim. The written objection must contain the reasons why the Member does not agree with the repudiation, and where possible, documentary proof must be submitted to support the objection.
Once the written objection is received, LegalWise will reconsider the matter based on the written submission and make a final decision in the following instances:
1. the repudiation is based on the fact that the Member didn't pay a premium; or
2. the repudiation is due to the relevant event occurring before the end of the waiting period; or
3. the repudiation is based on the fact that the maximum limit of indemnity was paid.
If the repudiation is based on any other reason (such as no chances of success), LegalWise will appoint an Independent Referee to review the repudiation. LegalWise is, however, not bound to the recommendation of the Independent Referee and therefore does not have to follow the recommendation of the Independent Referee, but it will be carefully considered.
LegalWise will inform the Member of the Referee's recommendation and of the final decision within 15 days after receiving the recommendation.
Should the Member still not agree with the repudiation, the Member has 365 days to take legal action against LegalWise from the date s/he was first informed that the matter is not covered. This must be done at the Member's own cost.
What happens if you pay your legal fees and win your legal matter that was initially repudiated based on no chances of success?
Should the matter be repudiated due to no chances and the Member opts to proceed with the matter and wins in court, LegalWise may consider refunding the fees in terms of the relevant LegalWise tariffs applicable, provided that LegalWise has all the documents relating to the matter.
However, LegalWise is not bound to this and may refuse to refund any fees and stand by the initial repudiation assessment.
Conclusion
In light of the above, the chances of success in a matter can have an impact on how you approach the matter. For example, having an idea about what your chances of winning are can help you prepare better for your case. On the other hand, it is possible for different opinions on chances of success and appeal procedures are in place if you are not in agreement with the first opinion. With all of this being said, you should always remember that your chances of success generally rely heavily on the evidence you have available.