Define: Discretionary Order

Discretionary Order
Discretionary Order
Quick Summary of Discretionary Order

A discretionary order is a decision or directive issued by a court, administrative agency, or other authority that allows the decision-maker a degree of flexibility or discretion in its implementation. Unlike mandatory orders, which require specific actions or outcomes, discretionary orders give the decision-maker the authority to exercise judgement and consider various factors before reaching a decision. This discretion allows decision-makers to tailor their orders to the unique circumstances of each case and to balance competing interests or objectives. Discretionary orders are commonly issued in areas such as sentencing, administrative law, and equitable remedies, where individual circumstances and considerations may warrant flexibility in the application of the law. However, the exercise of discretion must be within the bounds of legal authority and guided by relevant legal principles and standards.

What is the dictionary definition of Discretionary Order?
Dictionary Definition of Discretionary Order

An order which gives the broker the authority to determine when and at what price to execute the transaction.

Full Definition Of Discretionary Order

A discretionary order in British law is a judicial directive that grants the court or a judge the authority to decide the specifics of a case based on the circumstances presented, rather than adhering strictly to statutory mandates or rigid legal precedents. This legal mechanism is integral to the British judicial system, enabling flexibility and fairness in the administration of justice. This overview delves into the nature, purpose, scope, and applications of discretionary orders, with a focus on various legal contexts such as family law, criminal law, civil litigation, and administrative law.

Nature and Purpose of Discretionary Orders

Discretionary orders are judicial instruments that empower courts to make decisions based on their evaluation of the unique facts and merits of each case. Unlike mandatory orders, which require a court to follow specific legal requirements, discretionary orders allow for a degree of judicial latitude. This flexibility is crucial in ensuring that justice is tailored to the individual circumstances of each case, promoting equity and fairness.

The purpose of discretionary orders is multifaceted:

  1. Tailoring Justice: They allow courts to issue rulings that reflect the particularities of each case, ensuring that the outcomes are just and appropriate.
  2. Flexibility: They provide the judiciary with the flexibility to adapt legal principles to evolving social norms and complex factual situations.
  3. Equity: They help in mitigating the rigid application of laws that might otherwise lead to unjust outcomes.

Discretionary Orders in Family Law

Family law is one of the primary areas where discretionary orders play a pivotal role. The complex and sensitive nature of family disputes necessitates a flexible approach to ensure that the best interests of all parties, especially children, are upheld.

  1. Child Arrangement Orders: Courts frequently issue discretionary orders regarding child arrangements, which include living arrangements and visitation rights. These orders are made after considering the welfare checklist under the Children Act 1989, ensuring that the child’s best interests are paramount.
  2. Financial Orders: During divorce proceedings, discretionary orders can determine the division of assets, spousal maintenance, and child support. The Matrimonial Causes Act 1973 grants courts the discretion to allocate resources equitably, considering factors such as the length of the marriage, the financial needs of both parties and their contributions to the marriage.
  3. Non-Molestation and Occupation Orders: Under the Family Law Act 1996, courts can issue non-molestation orders to protect individuals from domestic abuse and occupation orders to regulate who can live in the family home. These orders are discretionary, based on the severity of the situation and the need for protection.

Discretionary Orders in Criminal Law

In criminal law, discretionary orders serve to balance the interests of justice, the rights of the accused, and the protection of the public.

  1. Sentencing: Judges have significant discretion in sentencing, guided by statutory guidelines and principles set out in the Sentencing Act 2020. Factors such as the severity of the offence, the offender’s criminal history, and mitigating or aggravating circumstances influence the final sentence.
  2. Bail Decisions: The decision to grant bail is discretionary, taking into account factors like the risk of the defendant absconding, the likelihood of reoffending, and the need to ensure the defendant’s appearance at trial. The Bail Act 1976 provides the framework, but judges have the leeway to make decisions based on individual case specifics.
  3. Preventive Orders: Various preventive orders, such as Anti-Social Behaviour Orders (ASBOs) and Sexual Harm Prevention Orders (SHPOs), are discretionary. Courts issue these orders to prevent future harm based on the individual’s past conduct and the perceived risk they pose to society.

Discretionary Orders in Civil Litigation

Discretionary orders are also prevalent in civil litigation, where they help manage proceedings and ensure just outcomes.

  1. Injunctions: Courts have the discretion to grant injunctions to prevent harm or maintain the status quo pending the resolution of a case. Types of injunctions include prohibitory, mandatory, and interim injunctions. The court considers the balance of convenience, the likelihood of irreparable harm, and the merits of the case.
  2. Case Management: Under the Civil Procedure Rules (CPR), judges have broad discretion in managing cases to ensure efficient and fair proceedings. This includes decisions on disclosure, amendments to pleadings, and the imposition of costs.
  3. Summary Judgment: Courts can grant summary judgment, a discretionary order, to expedite proceedings when there is no real prospect of success for the defendant or claimant, thereby saving time and resources.

Discretionary Orders in Administrative Law

In administrative law, discretionary orders are crucial in reviewing decisions made by public bodies and ensuring they adhere to principles of legality, rationality, and fairness.

  1. Judicial Review: Discretionary orders in judicial review proceedings can quash, prohibit, or mandate actions by public authorities. Courts assess whether decisions are lawful, reasonable, and procedurally fair.
  2. Asylum and Immigration: Discretionary leave to remain is a type of immigration status granted based on the specific circumstances of an applicant, such as humanitarian grounds or compelling compassionate factors. This is governed by discretionary policies and guidelines.
  3. Local Authority Decisions: Discretionary orders can compel local authorities to fulfil statutory duties or rectify unlawful decisions, ensuring accountability and justice for individuals affected by administrative actions.

Principles Guiding the Use of Discretionary Orders

The use of discretionary orders is guided by several legal principles to ensure that judicial discretion is exercised judiciously and fairly:

  1. Proportionality: The response or order must be proportionate to the issue at hand, balancing the interests of all parties involved.
  2. Reasonableness: Discretion must be exercised reasonably, avoiding arbitrary or capricious decisions. This is rooted in the principle of Wednesbury unreasonableness, where a decision is so unreasonable that no reasonable authority would ever consider it.
  3. Equality: Courts must ensure that discretionary orders do not result in discrimination and that all parties receive equal treatment under the law.
  4. Fairness: The decision-making process must be fair, providing all parties with an opportunity to present their case and ensuring transparency in the court’s reasoning.

Challenges and Criticisms

While discretionary orders are vital for ensuring flexible and equitable justice, they are not without challenges and criticism.

  1. Inconsistency: The subjective nature of discretion can lead to inconsistent decisions, potentially undermining the predictability and reliability of the legal system.
  2. Judicial Bias: There is a risk of personal biases influencing judicial decisions, which can affect the impartiality and fairness of outcomes.
  3. Appeals and Reviews: Discretionary decisions are often subject to appeals and reviews, which can prolong litigation and increase costs.
  4. Transparency: Ensuring transparency in the exercise of discretion is crucial to maintaining public trust and confidence in the judicial system.


Discretionary orders are a cornerstone of the British legal system, providing courts with the necessary flexibility to deliver tailored and just outcomes. Their application spans various legal domains, including family law, criminal law, civil litigation, and administrative law, highlighting their versatility and importance. While they offer significant benefits in ensuring justice is context-sensitive and equitable, they also present challenges that require careful management to preserve consistency, fairness, and transparency. Ultimately, discretionary orders exemplify the dynamic nature of the law, adapting to the complexities of human affairs and societal changes.

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This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 9th June 2024.

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