Costs normally follow the event and are paid by the losing party. But where the costs were caused not by the merits of the case but by the way a lawyer conducted it, the Rules let the Court shift them to the lawyer. The power is used sparingly.
Order 12 Rule 11
Without limiting the Court’s discretion to award costs in a proceeding, if costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court or a Judge that a lawyer is responsible (whether personally or through a servant or agent), the Court or a Judge may, after giving the lawyer a reasonable opportunity to be heard, do any of the following: (a) disallow the costs as between the lawyer and the lawyer’s client; or (b) if the lawyer is acting as instructed counsel, disallow the costs as between the counsel and the counsel’s instructing lawyer; or (c) direct the lawyer to repay to the client, costs which the client has been ordered to pay to another party; or (d) direct the lawyer to indemnify any party other than the client against costs payable by the party indemnified.
When a lawyer is taken to be responsible
A lawyer is taken to be responsible for a default if a proceeding cannot conveniently proceed, or can proceed only with the incurring of extra costs or with inconvenience to the Court or a Judge or another party, because of the failure of the lawyer: (a) to attend before the Court in person or by a proper representative; or (b) to file any document that ought to have been filed; or (c) to deliver for the use of the Court or a Judge, any document that ought to have been so delivered; or (d) to be prepared with any proper submission, evidence or account; or (e) to comply with any provision of these Rules or any judgment or order or direction of the Court or a Judge; or (f) otherwise to proceed.
| Situation | Likely order |
|---|---|
| Lawyer does not appear at a call over, directions hearing or the hearing, and the matter is adjourned | Costs thrown away ordered against the lawyer under r 11(1)(d); referral for summary determination |
| Appeal book not filed by the directed date; hearing date lost | Costs of the wasted date against the lawyer; peremptory order under O 7 r 48(b) |
| Written submissions or extract of argument not filed under O 11 rr 12–18 | Costs of the adjournment against the lawyer |
| Appeal filed on grounds the lawyer should have known were incompetent, or a review filed where an appeal lay | Client’s liability for the respondent’s costs shifted to the lawyer under r 11(1)(c) or (d) |
| Appeal lodged out of time through the lawyer’s oversight and dismissed | Disallowance of the lawyer’s own fees against the client under r 11(1)(a); the client’s remedy is otherwise in negligence |
| Unnecessary documents in the appeal book, duplicated affidavits | Costs disallowed on taxation under r 30 rather than a personal order |
How the order is made
The Court may act on its own motion when the default happens in front of it, or on the application of the client or of the other party in Form 4 with an affidavit setting out the costs wasted and why the lawyer is responsible. Rule 11(1) requires that the lawyer be given a reasonable opportunity to be heard: the Court adjourns the question, invites an affidavit, and hears the lawyer separately from the client. Rule 11(3) allows the Court or a Judge to refer the matter to the Registrar for inquiry and report first. The order specifies the sum or directs taxation, and it is enforced like any other costs order under Order 12 Division 7. See enforcing a Supreme Court costs order.
Disallowance under Rule 30
Order 12 Rule 30 lets the Court or a Judge, on a hearing and whether or not objection is taken, direct that costs improperly, unreasonably or negligently incurred be disallowed, direct the taxing officer to examine and disallow them, and direct that the party whose costs are disallowed pay the other parties’ costs of the step concerned. Rule 30 bites on the party’s bill; Rule 11 reaches the lawyer’s pocket. They are often used together.
Beyond costs: contempt and discipline
In Kwimberi v The State (1998) SC545 the Supreme Court upheld a contempt finding against a lawyer whose failure to appear at a trial fixed with his consent amounted to gross carelessness. Contempt is reserved for the serious case; the routine sanction is costs. The Court may also refer a lawyer’s conduct to the Lawyers Statutory Committee under the Lawyers Act, which can suspend or strike off. See what happens if a party does not appear.
For clients
If an appeal is dismissed because a lawyer missed a step, Rule 11 can protect the client from the respondent’s costs and from the lawyer’s own bill, but it does not reinstate the appeal. That requires an application under Order 11 Rule 32 within 21 days, or an extension of time, on evidence that the client was not at fault. See what happens if your lawyer misses the appeal deadline and who pays the costs of an appeal.
Sources
- Supreme Court Rules 2012 — O 7 r 48; O 11 rr 12–18, 32; O 12 rr 5, 11, 30, Division 7; Form 4
- Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea (1998) SC545
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.