Straight from the Pocket – Costs Orders against Solicitors

The Irish Times reported on the 4th November 2021 about a life-long Dublin supporter whose claim for damages against the GAA was dismissed by the Circuit Court.  In dismissing the claim, the Court also awarded costs in favour of the Defendant.  The Defendant then asked the Court to order that the Plaintiff’s Solicitors and not the Plaintiff herself pay the Defendant’s legal costs.  It was argued that the Plaintiff’s Solicitors were repeatedly warned about the near certainty of their client’s case failing, but that they continued with her claim.  The Court refused to grant an order for wasted legal costs against the woman’s Solicitors, but Judge John O’Connor said that a warning had to be sent out in relation to cases where Solicitors have been repeatedly told of the near certainty of their client’s case failing.

This type of order, where a Solicitor is ordered to personally pay the legal costs is known as an Order de bonis propriis, which literally means “straight from the pocket” (of the representative) or “out of one’s own pocket”.  In the South African case of Lushaba v MEC for Health, Gauteng 2015 (3) SA 616 (GJ) the Plaintiff sued the Defendant on grounds of medical negligence caused by the staff of a provincial hospital.  The Court found in favour of the Plaintiff and awarded costs de bonis propriis against the Defendant’s attorney, largely due to the decision to defend the action while there was no defence at all.

In Lushaba v MEC for Health, Gauteng the Court said that costs de bonis propriis are not easily awarded, but that it would be done if:

  1. There was negligence on the part of the legal practitioner of a serious degree.
  2. There was conduct which substantially and materially deviated from the standard expected of the legal practitioner such as dishonesty, obstruction of the interests of justice, irresponsible and grossly negligent conduct, gross incompetence, and grossly negligent conduct, litigating in a reckless manner, misleading the court, gross incompetence, and a lack of care.

In Ireland, Order 99 r.2(1) of the Superior Court Rules provides that the costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts.  O.66 r.1(1) of the Rules of the Circuit Court provides that the granting or withholding of costs of any party to any proceeding in the Court shall be in the discretion of the Judge or the County Registrar as the case may be.

Irish Courts clearly have a discretion when it comes to awarding costs.  But is this discretion wide enough to allow a Court to order a Solicitor, who is not a party to the proceedings but only representing a party, to personally pay the legal costs of the proceedings? Having regard to the above and the warning by Judge O’ Connor in the GAA case, it would seem that the Circuit Court can order a Solicitor who is only representing a party to personally pay the legal costs of the proceedings.

Mornè Gouws

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