I often come to a point in a litigation matter when my opponent delays in delivering something that he/she is required to deliver. Often it is a reply to a request for information and is something that is required before things can move ahead or before we can meaningfully deal with an issue. When a party fails to deliver something they are obliged to deliver, in terms of our rules of court, there is often a mechanism to enforce compliance with those rules. This mechanism is often an application to compel and involves bringing what we call an interlocutory application on a few days notice for a court order compelling the other party to deliver the document, information or set of responses within a fixed period of time; usually 5 or 10 court (read ‘business’) days.
This mechanism is an important mechanism because it helps me address unreasonable delays on the part of my opponent and move things along. The problem with this mechanism is that, like all court processes, it costs money to bring the application and obtain the order. To add to this, the other side almost always delivers and while you often get to take an order for your costs, those costs may not correspond with your actual costs. So what to do?
One option is to give my opponent more time to come up with his/her response. If he/she delivers it means I don’t have to incur the cost of preparing the application or going to court and I may loose a week or two. The problem with this approach is that my client loses a week or two and my opponent’s delay draws the matter out more than it is usually drawn out anyway (because of time periods for various steps and the delay in getting to court) and there is still the chance that my opponent won’t comply with his/her deadlines and once more we go around the metaphorical bush.
The point of this all is to give you a better idea about the dynamic that comes into play when litigators like me have to weigh up the competing considerations of cost and expediency. Sometimes it helps for you, as a client, to clarify what your primary objectives are – saving money or getting to court/resolving the matter as quickly as possible. Unfortunately cost is almost always a key consideration so the choice isn’t always that easy but there you have it.