On an application to set aside a perfected judgment for malpractice, the applicant need not demonstrate that it exercised reasonable diligence or that the result would probably have been different; these are discretionary factors rather than preconditions. However, if the result was incapable of being affected by the malpractice, the judgment will not be set aside. A document inspected by a party's solicitor at a third party's premises may be in the 'custody' of that party for discovery purposes. Misleading the court by failing to disclose the existence of additional copies of a key document constitutes malpractice capable of justifying setting aside a perfected judgment.
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