The latest application for an order that a party’s solicitor pay the costs of proceedings personally is Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477. In dismissing the application, Justice McDougall commented:
‘[185] In theory, the courts are open to all. In practice, access to the courts is often dictated by the availability of financial resources. That is an unfortunate fact of life. It does not mean that those without resources should be barred from the courts, particularly where legal practitioners are prepared to accept instructions on a contingency basis.
[186] The policy underlying the power of the courts to order for security costs is based on different considerations. Undoubtedly, the exercise of that power has the effect from time to time of preventing arguable cases from being run. Where that happens, it should be pursuant to an order of a court on an application for security for costs, after balancing all relevant considerations. It should not be pursuant to a decision of a legal practitioner who is afraid to accept instructions from an impecunious client because the defendant, if successful, may obtain an order for costs against the legal practitioner personally.’
His Honour stated the law as follows: Continue reading “Substantial personal costs order application against solicitor fails”