The Irish High Court has held a solicitor personally liable for the legal costs of an ex parte application taken to prevent the deportation of her client. In applying its inherent jurisdiction under Order 99 rule 7 the High Court found the conduct of the litigation fell below the minimum professional and ethical standards which must be demanded of all lawyers who appear before the courts.
Order 99, rule 7 confers a power on the court where it appears, by reason of some misconduct or default on the part of a solicitor acting for a person or that costs properly incurred by that person have nevertheless proved fruitless to him or her – to call on that solicitor to show cause why those costs should not be disallowed between the solicitor and his client and also, if the circumstances of the case require, to show why the solicitor should not repay any costs which the client may have been ordered to pay to any other person. In making the costs order against the solicitor Judge Keane found there had been a clear default in duty owed by the legal practitioners in court in commencing and continuing these proceedings. Judge Keane noted that practitioners have a duty to the court to ensure that the right of access to the court is not abused by vexatious, wasteful and speculative litigation. Further, there is no obligation to pursue litigation at all costs simply because it is possible to do so, especially when it has no purpose other than that of prolonging the process and postponing a final determination of the asylum application. In light of this the solicitor was required to indemnify the applicant for the costs of the Minister in defending the proceedings.
By way of background on 16 March 2016 the applicant’s solicitor made an emergency ex-parte application to the High Court to prevent the deportation of the applicant which was scheduled to take place the same day. At this time the applicant was incarcerated for a number of criminal offences for theft and drug offences. The applicant had received notification of his deportation in June 2015. Judge Keane was highly critical of the applicant’s legal team and their conduct during the ex parte application before Judge Barrett. Judge Keane found there had been a lack of candour regarding the applicant’s criminal convictions, failure to adhere to statutory time limits for the making of such an application and a failure to explain adequately why the application had not been made earlier when the applicant was fully aware of the Minister’s reasons for the deportation.
In addition to the costs order Judge Keane also put a number of questions to the practitioners about their conduct during the proceedings and why they should not be found to have breached professional standard, including why the solicitor instructed a trainee barrister (with therefore limited experience in ex-parte applications of this nature) and why the trainee barrister accepted the case.
A copy of the judgement is available here.
For further commentary on the case please click here and here.