Discretion May Be the Better Part of Valour

But it can still be the bane of my life!

I agree with Shakespeare about the benefits of knowing when to step aside, rather than fighting on, but the problem comes not with my client’s ability to exercise their discretion, but the courts.

I am currently preparing for a hearing about having a judgment set aside.  As is often common at the last minute, there is a frantic exchange of documents and emails with the other side.  The court rules are quite clear about how to deal with these last minute developments, BUT the judge can exercise a discretion, and even if I think he’s wrong, there may be little I can do about it.

For example, if you are awarded your costs of the hearing, the Judge should assess your costs there and then, and make an immediate order for the other side to pay those costs within xxxx period of time (usually around 14-21 days) rather than making you wait until the end of the case.  However, this is dependent on you having served your statement of costs at least 24 hours before the hearing.   If you are late, the court can still asses the costs if he thinks it’s in the interests of justice to do so.  In the case I’m working on, the other side have not served a schedule of costs, but have put forward a proposal to move matters forward, indicating that if we don’t agree, they will then serve their schedule (albeit very late) and still claim them at the hearing.  The client asks if the court will let them do that.  My answer is probably not, but the judge has a discretion.

In the same case, we have been served with a document at short notice.  If it is admitted in to evidence at the hearing, it won’t do us any favours, although it won’t necessarily be fatal.  However, the document is not attached to a witness statement, and even if it was, it’s nearly two days past the deadline, but it does contain a statement of truth.  The client asks if the court will allow it in to evidence.  My answer is probably not, but the judge has a discretion.

Still in the same case, we have been telling the other side for about a week that the hearing should be adjourned because there simply isn’t enough time to deal with all of these points, let alone the substantive hearing, and that if they unreasonably refuse, and the judge agrees and adjourns us, we’ll be asking that they pay the costs that we’ve wasted by attending.  The client asks if the judge is likely to make such an order.  Well, you know what I’m going to say.

So when I tell you that litigation is a bit like a lottery, and more like a game of poker than business, you can see why.

If you’d like to exercise your discretion, my advice would be to take legal advice before you do business with people.  It won’t prevent situations like this, but it will reduce them, and increase your chances of success on the few that do still happen.

If you’d like me to exercise my discretion, I’ll have a pimms and lemonade – you’re paying!

Kleyman & Co Solicitors.  The full service law firm.