The High Court has set aside an order requiring a solicitor to repay his client’s costs after finding that the solicitor’s conduct did not amount to misconduct or gross negligence and that the Master of the High Court had no power to make the order.
In a judgment delivered on 28 November 2006, Finnegan P. allowed an appeal by Terence Kennedy, whose injury at work involving a shutter type door had led to personal injury proceedings. Liability in those proceedings remained in issue. The appeal concerned a separate costs order made after an unsuccessful application for interrogatories, rather than the underlying injury claim.
Kennedy’s solicitor had applied for interrogatories after Senior Counsel advised that the defendant be asked to admit facts about the door and its sensors, and that sworn replies be sought if no response was received. The Master refused the application, finding that the requested information did not meet the test for interrogatories. The Master later ordered that the solicitor’s costs of the application be disallowed and that he repay Kennedy any costs Kennedy had been ordered to pay the defendant.
The High Court held that an order under Order 99 Rule 7 required misconduct involving a breach of the solicitor’s duty to the court, or at least gross negligence in relation to that duty. Finnegan P. said the solicitor had acted on Senior Counsel’s advice. That did not excuse a breach of duty, but would generally answer a charge of negligence. At its highest, the conduct amounted to negligence, not gross negligence, so the threshold for the order had not been met.
The court also found that the Master had no power to make an Order 99 Rule 7 order. The relevant rules gave the Master limited powers over costs, but Order 99 Rule 7 did not extend to proceedings before the Master. The Master therefore also lacked power to refer the matter for an inquiry or appoint a solicitor to represent Kennedy at a hearing about such an application.
The appeal was allowed. The High Court set aside the Master’s order insofar as it dealt with costs and the appointment of a solicitor to represent Kennedy. It did not determine the costs of the original interrogatories application or the appeal; Finnegan P. said he would hear the parties on those orders.