Report comment

History is made by the unintended consequences of intentional - but maybe well meant - actions or omissions.

Costs used to be easy. They largely followed the event and had to be reasonable by reference to that event. However, it gave those deciding those costs enormous discretion. To some discretion means power and is anathema. So discretion as to costs (and elsewhere) has been eroded and replaced by blanket application by rule drafted to reduce discretion. As an aside, Equity came into being to afford discretion to those deserving of it.

Judges, like most other mortals - however endowed with classical metaphor - are, I suspect, - divided by those who prefer to decide by rule (or to make rules) and those who prefer the more risky "seat of the pants - let's see what's fair approach aka the subjectively objective or vice versa - approach.

FTB the former have the floor.

Not much comfort. The Supreme Court will have to decide.