In a recent High Court decision, in which the firm acted for the successful party, costs were awarded to the defendant against the plaintiff's solicitor personally on the basis that the solicitor's conduct "fell by a very large margin below that of a competent lawyer."
Costs may be awarded against counsel personally when there is a serious dereliction of their duty to achieve and maintain appropriate levels of confidence or care, or when counsel display negligence of a sufficiently high standard. Costs will not necessarily be awarded when counsel take a hopeless or weak case, but when a lawyer lends his or her assistance to a proceeding that is an abuse of process of the Court, then costs may be ordered.
In this case, the Court considered that the proceedings were misconstrued, could never have succeeded, and were based on factual misconceptions. The Court noted that if the litigation had ended after the first hearing, then although the conduct of the litigation to that stage was seriously incompetent, no award of costs would have been made against the solicitor personally. However, the continued pursuit of the claim after the first hearing was an abuse of process, the material filed by the solicitor was misleading, and it should have been self evident that the claim could not succeed. In these circumstances a costs award was appropriate.
This case serves as an important reminder of the need for lawyers to balance carefully the duties they owe to their clients with those owed to the Court.