David Burrows examines the relationship between judicial discretion & the law
Judicial discretion can be an excellent means of dealing with family disputes. It can also be a matter for confusion, and thus of litigant’s bitterness.
Anecdote is inevitable: in the last month two clients of mine have succeeded in appeals against decisions based on district judicial discretion: one on ancillary relief and one on costs. In each case the appellate judge is reviewing adversely the exercise of district judicial discretion. That done, then in each case in the exercise of their respective discretions on costs, each judge went in diametrically opposite directions. And less than a month divided the decisions.
A broad outline of both cases will follow, sufficient only to illustrate the discretion point now under review; but first a short explanation of the law on discretion-based appeals is appropriate.
Appeals: Piglowska principles
Civil Procedure Rules 1998 r 52.11(3) provides that an appeal will be allowed where the decision below was either “wrong” or that it was “unjust because
