Special responsibilities of lawyers as litigants

Lawyers are the only litigants who are entitled to recover from the counterparty in litigation costs for representing themselves: Guss v Veenhuizen (No 2) (1976) 136 CLR 47.  Suing the client for fees can therefore be a nice little earner for lawyers.  There is a species of lawyer whose suits for fees are conducted in an ugly fashion, particularly where the former client is unrepresented. I do not like it when I see cases where solicitors have issued chambers summonses without notice to strike out incompetently prepared handwritten defences, obtained costs of their own appearance, and then issued a summons for oral examination when the costs go unpaid. No doubt this kind of abuse explains why there are limits on the entitlement to sue for fees, such as the obligation to wait 65 days after giving the bill: s. 3.4.33(1), Legal Profession Act, 2004.

If ever you need authority to throw at a lawyer who seems to be using the processes of the Court in an over-enthusiastic manner, check out Circuit Finance v Gardner [2006] VSC 70 (which was not a case about a suit for fees). There, the star of the notorious case Hercules v Phease [1994] 2 VR 411 copped a bit of comment from Justice Hollingworth.  Justice Hansen said in an earlier judgment in the same Circuit Finance case ([2005] VSC 111) at [48]:

‘It is referred to in the rules and it is axiomatic that parties to litigation including in particular a solicitor as a party to litigation, should conduct litigation at every turn with an eye to expedition, economy and, if I may say so, common sense.  In my view this application [Hercules] is quite unnecessary and failed in those respects.’ (my emphasis)

In the Phease matter, the solicitor’s former clients lodged a complaint with the Law Institute.  The solicitor sued the complainants for defamation.  The defamatory words were in the complaint itself and were said to have been published to the Institute.  Then he told the Institute it should not investigate the complaint because its subject matter was sub judice.  To the Full Court of the Supreme Court’s incredulity, the Institute bought the argument and suspended its investigation. Justice Marks commented at 414:

‘The institute then, for no apparent reason, suspended its investigation pending, so it said, the outcome of the litigation initiated by the appellant.  I assume that it acted under some misapprehension of its obligations under the Act which suggest, at least at that time, a different course.  See Lockwood v The Commonwealth (1953) 90 CLR 177, at p. 186; Attorney-General v Times Newspapers Ltd [1974] A.C. 273 and the statement of Lord Reid, at p. 301: “There is no magic in the issue of a writ …”; Edelsten v Richmond (1987) 11 N.S.W.L.R. 51 and the unreported decision of Lee J. discussed and approved there, at p. 63; Francis v Herald & Weekly Times Ltd.  (unreported, 17 March 1978); the statement of Lush J. being, in my opinion, to be preferred to that of Kaye J. in Watts v Hawke & David Syme & Co. Ltd. [1976] V.R. 707 at p. 715, and the comments on these latter authorities in (1978) 52 A.L.J., at pp. 336-8.’

But the plucky former clients managed to have the defamation claim struck out by a County Court judge.  On Mr Hercules’s appeal, the Full Court of the Supreme Court agreed with the trial judge, finding after a great deal of agonising that the complaint was sufficiently analogous to originating process in litigation to attract the absolute privilege which applies to statements in litigation.  For more on this aspect of the law, see this post and this one.

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