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Marc Pillay Correspondent
This is a question I must have been faced with hundreds of times in my years as in-house legal counsel in the business sector. And I am certain that I will be faced with the same question hundreds more times, just as any other legal professional inevitably will be.

On the face of things, it seems to be a routine and straightforward question with an equally routine and straightforward answer. Having reviewed a business contract as in-house counsel, you must necessarily be in a position to give that feedback to the business unit that wishes to conclude that agreement. Either we are legally covered, or we are not. Simple. Or is it that simple?

The reality is that the answer will often a simple “Yes, we are legally covered” when, in fact, it should be a bit more than that. In my experience, I have come to notice that there is something of a blind spot that exists in the world of commercial law. I have identified this blind spot through analysis of my own experiences and have gone further to confirm its existence through discussions not only with fellow legal professionals, but with various business leaders as well.

Many lawyers tend to focus only the existence of legal rights and obligations as captured in the contractual documentation and apply them, within their own scope of understanding, to what may or may not happen within this business relationship. They assess the legal risk and related implications from the perspective of the existence or non-existence of legal rights and obligations, and then give the “yay” or “nay”. The former inevitably comes with the customary “Yes, we are legally covered”.

Move on a few weeks or months and a supplier or service provider or any business partner has failed to meet its obligations as per agreement. The task is now to remedy the situation through legal channels. And, as a legal professional, one is very quickly faced with exasperated business people who are continuously asking questions like “But we paid for XYZ and they have failed deliver. Why is it taking so long to get our money back?” Or, “They have not paid rent for three months, why is it taking so long to get them out of the premises?” In the mind of the business person, we were legally covered! And, to a large extent, rightly so. After all they asked for, and were given, the assurance that “We are legally covered”. The business-person’s rationale is that there is clearly a legal right that exists in our favour, so it must surely be just a quick, routine exercise to enforce it, right? Wrong!

There is an aspect of legal rights that is seldom given much consideration or explanation. This is the aspect of enforcement of legal rights, which needs to be specifically and deliberately distinguished from the existence of legal rights. This lack of specific and deliberate distinction between the existence and enforcement of legal rights is the blind spot.

Until recently I have been one of the many legal professionals who have largely overlooked this critical aspect when giving advice, together with the mandatory assurance that “We are legally covered”. I have since concluded that this common oversight is the product of two major factors. The first is that  as legal professionals, many of us tend to take for granted that because we, ourselves, are so well conversant with the civil litigation process for the enforcement of legal rights, businesspeople are equally well aware of, and conversant with, the enforcement process. The second — which I have concluded on the back of my own previous experience in private practice — is that both Law School and Private Practice are somewhat restrictive with regard to seeing the bigger picture from a business perspective.

In a nutshell, the existence of legal rights is by virtue of contracts that have been concluded, and/or by operation of law — whether common law, statute or precedent. The existence of legal rights is that simple. The enforcement of legal rights, however, is something quite different. It is an entire process rather than merely an event in isolation. And I have deliberately used the word process to describe the enforcement of legal rights. While it genuinely is a process — which is good enough reason on its own to describe it as such — I have also come to realise that “process” is a word that businesspeople know, understand and love. It is something with which they can and will very easily identify.

This process of enforcement of legal rights is founded upon the audi alterem partem principle. In short, the courts want to hear not only your story, but the other side of the story as well before making an objective decision. Who can argue with that? Yet many business people seem to have the idea that because they are convinced that their legal rights have been infringed, they should get their legal recourse immediately.

Further, this process incorporates a defined procedure with specific and sometimes very stringent requirements for bringing a claim before the courts. This includes prescribed time-lines for each step of the process. So, when you file your summons or court application, the other party has specified timelines within which to respond. You cannot expect a response tomorrow, or even next week for that matter.

Finally, and perhaps most importantly, this process ultimately requires the presentation of evidence to support the assertion that legal rights have been infringed. This is entirely within the control of the person who alleges infringement of legal rights, yet it is quite unbelievable how often lawyers find themselves having to seek postponements because the evidence required to prove the claim has not been made available by their client. The same client who previously asked “why is it taking so long?”

We will look further into the enforcement process and evidentiary requirements in the coming instalments. But for purposes of this instalment, the conclusion is simple — when a legal professional says “We are legally covered”, this speaks only to the existence of legal rights. The assurance of that statement ends there. It does not extend to the actual enforcement process which can be, and normally is, lengthy and drawn out with stringent requirements to be met, evidence being chief among them.

Marc Pillay is a writer, lawyer and life analyst. He is also a published author.