New South Wales Consolidated Acts

CIVIL PROCEDURE ACT 2005 - SECT 99

99 Liability 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 7 of the Legal Profession Uniform Law Application Act 2014 ) 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.