Ethics and the uncertain world of costs orders against lawyers personally

I’m fresh back from delivering a presentation tonight on ethics and costs orders against lawyers.

There was no seminar paper but I made extensive reference to three cases involving lawyers behaving badly in court.

I promised attendees I’d post details of the cases and some related material on this blog.

The ‘how-not-to-cross-examine’ case is Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; [2008] VSCA 244; BC200810744

The plaintiff did not ask for costs against the defendant’s errant silk personally even though Court of Appeal found “the predominant cause of the mistrial was the conduct of senior counsel for [the defendant]” and the 12 day jury trial had become a “fiasco”. See the costs decision at Rees v Bailey Aluminium Products Pty Ltd (2009) 21 VR 478; [2009] VSCA 96; BC200903853.

See Justinian’s account of the case here.

The ‘how-not-to-address-a-jury’ case is Baulch v  Lyndoch Warrnabool Inc (2010) 27 VR 1; [2010] VSCA 30 BC201001361.  A differently constituted Court of Appeal reviewed the performance of the same silk who attracted the Court of Appeal’s ire in Rees.  The time the crit included terms like “egregious” “unfair” and “having acted with a deliberate disregard of a fundamental rule of fairness.” The costs decision is at Baulch v Lyndoch Warrnambool Inc (No 2) — [2010] VSCA 53; BC201001361. Once more there was no costs order against the silk.

Justinian’s account of the case is here.

Costs were awarded against a barrister (no, not that silk this time) and his instructing solicitor in Apollo169 Management Pty Ltd v Pinefield Nominees Pty Ltd [2010] VSC 276 despite the court’s criticisms of their performance being less strident than in Rees   and Baulch. See also my case note on Apollo posted 23 February 2012.

The  Civil Procedure Act recently celebrated its first birthday. It postdates each of these cases but might now provide an even clearer line of attack against lawyers personally for wasted costs in similar cases.



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