ORDERS GIVING DIRECTIONS – PART I
Orders Giving Directions in Estate Litigation are the focus of this week’s blogs. While estate litigation is similar in many respects to civil litigation, the approach to litigating estate claims can be quite different given the estate litigator’s ability to, among other things, seek and obtain an Order Giving Directions to manage the litigation.
Typically, in civil litigation, if the claim proceeds by way of statement of claim, the pleadings stage will be followed by documentary (affidavit of documents) and oral discovery, mediation and/or a pre-trial conference and thereafter, a trial. One’s approach to estate litigation may be different, however, based on counsel’s opportunity, at first instance, to, or attempt to, design and craft the manner in which the litigation may proceed and/or to seek the assistance of the Court with obtaining interim and/or ancillary procedural relief. How one chooses to manage a claim, which will lead to one’s choice of proposed provisions for the Order Giving Directions, will in turn depend on, among other things, the nature of the issues, who the parties are and/or ought to be, the evidence one thinks one will need to prove and/or defend such issues, how one can best marshal such evidence and utilize that evidence towards the pursuit of a settlement and/or the prosecution of the claim; all of the above being considered in the context of the value of the estate and the costs that will accompany the prosecution and/or defence of the claim.
Negotiating an Order Giving Directions Rule 75 of the Rules of Civil Procedure deals with contentious estate proceedings. Under Rule 75.06(1), any person who appears to have a financial interest in an estate may apply for directions, or move for directions in another proceeding under this rule, as to the procedure for bringing any matter before the court. An application for directions or motion for directions shall be served on all persons appearing to have a financial interest in the estate or as the Court directs, at least 10 days before the hearing of the application or motion. Parties can, however, seek such an application or motion on short notice if permitted by the Court.
Specifically, Rule 75.06(3) outlines the directions that may be given by a Judge and allows a Judge to make any procedural order that is just. A Judge may order the issues to be decided, the parties to be included, who is plaintiff and defendant, who is submitting rights to the court, who shall be served with the Order Giving Directions, the method and times of service, procedures for bringing the matter before the court in a summary fashion, where appropriate, the service and filing of a statement of claim (Form 75.7), the appointment of an estate trustee during litigation, the filing of security where appropriate, the conduct of a mediation session under Rule 75.1 and, as noted above, any other procedures deemed just.
One must be mindful that depending on the nature of the claim and directions sought, the court may intervene and make directions of its own regardless of whether the parties have been able to negotiate and agree upon an Order. This may occur, for among other reasons, if certain parties are unrepresented or should be added (but have not been), the Order is to effect non-parties and/or the ultimate judgment in the matter shall operate in rem and will not bind only the parties to the litigation. Depending on the nature of the proceeding, an Order Giving Directions may be quite simply or complex.
Have a great day, Craig.