In what he called "a wake-up call" to solicitors about high legal costs, the Master of the High Court has issued a unique order directing a solicitor to repay to his client the costs of bringing a "pointless" and "misconceived" court application.
In a judgment clearly indicating that more solicitors face being billed for the costs of bringing such applications - a "growth industry" - Edmund Honohan ruled he had jurisdiction to make "wasted" costs orders against solicitors "on the spot" at each stage of legal proceedings.
"It is in the long-term interests of the legal profession that courts should begin making wasted costs orders," he said. "
The lawyers probably won't see it that way, though; it is the old problem of 'not being able to see the wood for the trees'. For solicitors, this decision should probably be a wake-up call."
The Oireachtas had set up the Personal Injuries Assessment Board because legal costs were too high and other forms of dispute-resolution were becoming popular, said Mr Honohan, who deals with hundreds of pre-trial and other applications weekly.
Access to the courts featured in the European Convention on Human Rights and the courts had to monitor the costs of litigation, he said. If the costs of civil litigation were not kept "within reasonable limits" litigants would be effectively denied access to the courts.
It was perhaps "an uncomfortable conclusion" that the reason solicitors were apparently not that worried about the possibility that errors on their part might cost them was because, in practice, it never got to that point. The professional bodies representing lawyers also did not get involved in this matter.
The master noted that litigants were often "completely at sea" about items set out in solicitors' bills and were unable to query them effectively.
Much of legal costs related to motions - applications brought before and sometimes during trials - and legal business transacted on foot of such motions was "a growth industry".
Examples where costs could be regarded as "wasted" were when a party had to respond to an opponent's application to strike out a case because of the delay in prosecuting that case; applications for extensions of missed deadlines; lost applications due to defective paperwork and non-compliance with court orders.
In certain circumstances, if clients lost unnecessary applications brought by their solicitors, they could face having to pay the bills of four lawyers who appeared in the master's court. This was because costs wasted by one side increased the fees of the lawyers on the other side.
Mr Honohan made his remarks when directing that a solicitor - who had unsuccessfully brought an application (motion) on behalf of a client to have a defendant give sworn answers to certain questions - should personally pay costs incurred by the defendant in opposing that motion and must not include them in his client's bill. The solicitor had had five weeks to explain why the motion was brought and he had not done so.
Rejecting arguments that the Master of the High Court had no jurisdiction to make such an order, he ruled that solicitors were officers of the court and could be sanctioned summarily by the court.
He ruled that the court could make costs orders at each stage of legal proceedings, particularly if the costs arose through a solicitor missing deadlines, not complying with court orders, or in any situation where the solicitor's mistake was "glaringly obvious".
