Judge Awards Costs Against Lawyer Who Requires Adjournment Due to Illness

Justice D.M. Brown has awarded costs against a lawyer who sought (and obtained) an adjournment as a result of falling ill the day before an application.

It sounds crazy, until you discover that the real reason that costs were awarded was as a result of the lawyer’s office failing to properly inform the court about the adjournment.

On the day before the application, at 9:52 a.m., an email was sent by Mr. Cosgriffe’s office to opposing counsel advising them that Mr. Cosgriffe had fallen ill and the need to adjourn the hearing.

At 12:20 p.m. opposing counsel responded and indicated that they would be seeking certain terms as a condition of any adjournment.

At 12:49 p.m. Mr. Cosgriffe’s office replied and indicated that they were not prepared to agree to most of the terms that were requested in the 12:20 p.m. email.

At 1:37 p.m. a clerk from Mr. Cosgriffe’s office sent an email to the court advising of Mr. Cosgriffe’s illness and the request for an adjournment. The email stated, in part, “it is my understanding that someone will attend tomorrow morning to briefly speak to the matter and advise as to the adjournment of same”.

Justice Brown received this email shortly before 2:00 p.m. and understood it to mean that one person would be attending to seek a new date and that the matter would take one or two minutes to deal with. Accordingly, Justice Brown did not read any of the materials.

The following morning Justice Brown was advised that there were three lawyers in the courtroom and that there would be a fight over the terms of the adjournment. Needless to say, this made for one unhappy Judge.

Justice Brown took the opportunity in writing the decision to explain how crucial it is to be accurate when communicating with the court, and how judicial resources are wasted when counsel does not properly communicate with the court.

In this case, Justice Brown was, rightfully, not impressed by the fact that the email to the court made no mention of the fact that it was known that the terms of the adjournment would be a contested issue. He was also not impressed that the clerk who sent the email to the court did not copy opposing counsel. If she/he had done so, it is safe to assume that opposing counsel would have alerted the court to the fact that the terms of the adjournment were going to be contested.

For these reasons, Justice Brown awarded costs (of $500) against Mr. Cosgriffe’s clients, payable within a week.

As is usually the case with Justice Brown’s decisions, the reasons are entertaining and educational.

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