December 1, 2019

For your case to qualify for cover, it must have a prospect of success.

In the legal profession the words “chances of success” have significant meaning due to the fact that it will determine whether a legal practitioner is confident in the merits of the matter, and foresees that the client will be successful in obtaining the outcome that he/she requires.

Chances of success can be defined as the possibility that a favorable outcome is expected to your legal case. In the legal sense, this means that the case has merits taking into account the facts, the applicable law, and that the required outcome is obtainable in a court of law. 

Section 3b) of the Legalwise Membership Agreement specifies that a matter will only qualify for Insurance Benefit if among other things “Your Lawyer agrees in writing that your chances of succeeding in a Civil or Labour case are better than not succeeding.” This means that no cover will be provided for a civil or labour claim where the Lawyer is of the opinion that the case does not have sufficient merits to obtain the outcome required by the Member. We rely on the Lawyer's expertise and legal knowledge to provide us with confirmation that we can proceed to cover a claim, and that legal action will not be fruitless. 

The requirement stipulated in Section 3b) of the Membership Agreement is applied strictly in all civil matters. With regard to Labour matters, we do not require confirmation that there will be chances of success to provide cover for representation at a disciplinary hearing, referral to the CCMA/BC, and representation at Conciliation proceedings. Confirmation that there are chances of success is required from Arbitration stage onwards. As can be seen from the wording of Section 3b), the requirement only applies to Civil and Labour matters (excluding those mentioned above) and do not apply to criminal matters. 

Section 3 b) We could not resolve Your matter in-house and Your Lawyer agrees in writing that Your chances of succeeding in a Civil or Labour case are better than not succeeding.

An example of a positive report on chances of success will read as follows: “Upon consultation with the Member and perusal of all relevant documentation, it is our legal opinion that the matter enjoys chances of success, and that the Member may be successful with his/her claim.”

An example of a negative report on chances of success, leading to a request for cover being repudiated, will read as follows: “Upon consultation with the Member and perusal of the relevant documentation we are of the opinion that the Member's version of events will not be accepted by a court of law, and the Member will not be successful with litigation as he/she does not have any evidence to prove the damages suffered.”

Due to the high legal costs involved in High Court and Labour Court litigation, we require a substantiated merits report from the Lawyer, supported by case law and applicable legislation when assessing cover for matters which fall under these courts' jurisdiction.