RESPONDENT WANTS THE APPLICANT’S SOLICITOR TO PAY FOR COSTS ON AN INDEMNITY BASIS !
Reaney & Paggett [2021] FCCA 190 (4 February 2021)
This is an Application for the solicitor of the applicant to personally pay the respondent’s costs on an indemnity basis for bringing an unmeritorious action.
Facts:
The court dismissed the applicant's Applications in a Case for the appointment of a litigation guardian (the applications). The respondent had in her submissions in response to the applications sought an order that the applicant's solicitor, Mr C, personally pay her costs of the applications on an indemnity basis (the costs application).
The wife argued that the solicitor for the husband brought an unmeritorious application when seeking the appointment of a litigation guardian and acted without instructions in doing so. It was submitted by the respondent that she incurred significant and unnecessary costs responding to an application that was flawed from the outset. It was also submitted that the applicant’s solicitor should not have filed the Application in a Case for the appointment of a litigation guardian without sufficient evidence to ground it and certainly not by contending for the applicant’s solicitor to act as the litigation guardian.
The case lacked merit from the start and should have been abandoned once the lack of merit had been brought to the solicitor’s attention. Rather than abandoning the claim altogether an amended application was filed seeking the appointment of Mr D as the litigation guardian rather than the solicitor himself. No medical evidence was filed and the court was left in almost the same position as the earlier application.
Issue: Should the court order the applicant’s solicitor to pay for costs?
Law:
Analysis:
The court is satisfied that not only were the Applications in a Case lacking in merit from the outset, the solicitor for the applicant was derelict in his duties to his client and the court in pressing on with the applications when it should have been obvious to him that they would not succeed.
His conduct alone is responsible for the respondent incurring the costs she has and warrants the making of a costs order. The court does not consider it appropriate for the applicant to bear those costs. They should be borne by the solicitor.
The approach taken by the applicant’s solicitor, although motivated by a desire to help his client, lacked any objective and professional analysis of the merits. The respondent was put to an unnecessary expense that cannot be properly compensated by an order for costs on the usual terms. The court will therefore order that the applicant’s solicitor personally pay the respondent’s costs on an indemnity basis.
Conclusion: Court orders that Mr C, solicitor for the applicant, personally pay the respondent’s costs of the Application on an indemnity basis.
