99Liability of legal
practitioner for unnecessary costs
(cf Act No 52 1970, section 76C; SCR Part 52A,
rules 43 and 43A)
(1)
This section applies if it appears to the court
that costs have been incurred:
(a)
by the serious neglect, serious incompetence or
serious misconduct of a legal practitioner, or
(b)
improperly, or without reasonable cause, in
circumstances for which a legal practitioner is
responsible.
(2)
After giving the legal practitioner a reasonable
opportunity to be heard, the court may do any one or more of the
following:
(a)
it may, by order, disallow the whole or any part
of the costs in the proceedings:
(i)
in the case of a barrister, as between the
barrister and the instructing solicitor, or as between the barrister and the
client, as the case requires, or
(ii)
in the case of a solicitor, as between the
solicitor and the client,
(b)
it may, by order, direct the legal
practitioner:
(i)
in the case of a barrister, to pay to the
instructing solicitor or client, or both, the whole or any part of any costs
that the instructing solicitor or client, or both, have been ordered to pay to
any other person, whether or not the solicitor or client has paid those costs,
or
(ii)
in the case of a solicitor, to pay to the client
the whole or any part of any costs that the client has been ordered to pay to
any other person, whether or not the client has paid those
costs,
(c)
it may, by order, direct the legal practitioner
to indemnify any party (other than the client) against costs payable by that
party.
(3)
Before making such an order, the court may refer
the matter to a costs assessor (within the meaning of Part 3.2 of the Legal Profession Act 2004) for inquiry
and report.
(4)
The court may direct that notice of any
proceedings or order under this section with respect to a legal practitioner
be given:
(a)
in the case of a barrister, to the instructing
solicitor or client, or both, as the court may direct, or
(b)
in the case of a solicitor, to the
client.
(5)
The court may give ancillary directions to give
full effect to an order under this section, including directions to a legal
practitioner to provide a bill of costs in assessable form:
(a)
to the court, or
(b)
to a party to the proceedings,
or
(c)
in the case of a barrister, to the instructing
solicitor or client, or both, or
(d)
in the case of a solicitor, to the
client.
(6)
A party’s legal practitioner is not
entitled to demand, recover or accept:
(a)
in the case of a barrister, from the instructing
solicitor or client, or
(b)
in the case of a solicitor, from the
client,
any part of the amount for which the legal practitioner
is directed by the court to indemnify any party pursuant to an order referred
to in subsection (2) (c).
(7)
In this section, client includes former
client.
s 99: Am 2005 No 28,
Sch 5.3 [3].