The costs of getting it wrong

On Wednesday Lawyers Weekly carried the story of a NSW Local Court civil case where Magistrate Daphne Kok reportedly took the parties to task over their failure to resolve the issues in dispute.

Apparently the legal costs of the case are far in excess of the $30,000 original claim. They were more than $100,000 before the trial even started. The claim was dismissed but the issue of who will bear costs, and how much they will pay, has yet to be decided.

In the judgment her Honour said,

The plaintiffs are solicitors. The defendants are solicitors. Both parties are or have been separately legally represented. Not only do the proceedings involve too many lawyers, they involve too many experienced and well-informed lawyers. Too much heat and emotion has been engendered.

There has been too much distrust. There has been too little courtesy and comity. Too many words have been generated. There have been too many submissions including attempts to shore up or bolster earlier submissions and to counteract prior opposing submissions. Far too much time and money has been spent

Last year I posted about a Federal Magistrates’ Court decision to order that lawyers on both sides not bill their clients for work which the Court found was irrelevant and unnecessary. I’ve since been told that such orders, while not standard practice, are not uncommon in that jurisdiction.

The old Magistrates’ Court Act 1989 conferred on the court a general discretion (now repealed) in regard to costs. s 401 of the Criminal Procedure Act 2009 replicates this in similar terms, but s 410 specifically identifies legal practitioners as being potentially liable for costs.

Legal practioner in this context isn’t limited to admitted lawyers, but by virtue of the definition provided at s 2.2.2(2)(g) of the Legal Profession Act 2004 includes a person who appears in the course of their employment with the Crown or a public authority or in the performance of duties under an appointment by the Governor-in-Council.

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