Gill v Seymour (Trading as Attic Billiard Lounge)

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Rowe and Taylor, JJ.A.)
• Judgment Date: 12 April 2002
• Court: Court of Appeal (Cayman Islands)
• Date: 12 April 2002

Court of Appeal

(Zacca, P., Rowe and Taylor, JJ.A.)

GILL

and

SEYMOUR (trading as ATTIC BILLIARD LOUNGE)

R.D. Alberga, Q.C. and S.J. Barrie for the appellant;

J.C.B. Chapman for the respondent.

Cases cited:

(1) Myers v. Elman, [1940] A.C. 282; [1939] 4 All E.R. 484, applied.

(2) Orchard v. South E. Elec. Bd., [1987] Q.B. 565; [1987] 1 All E.R. 95, applied.

(3) Ridehalgh v. Horsefield, [1994] Ch. 205; [1994] 3 All E.R. 848, applied.

Legislation construed:

Grand Court Rules, O.14, r.12(1):

‘Where in an action to which this rule applies a defence has been served by any defendant, that defendant may, on the ground that the plaintiff”s claim has no prospect of success or that the plaintiff has no prospect of recovering more than nominal damages, apply to the Court for the plaintiff”s claim to be dismissed and judgment entered for that defendant.’

O.62, r.11(3): ‘Subject to the following provisions of this rule, where it appears to the Court that costs have been incurred improperly, unreasonably or negligently in any proceedings or have been wasted by failure to conduct proceedings with reasonable competence and expedition, the Court may order-

(a) the attorney whom it considers to be responsible . . . to repay his client costs which the client has been ordered to pay to any other party to the proceedings; or

(b) the attorney personally to indemnify such other parties against costs payable by them.’

Attorneys-at-Law-personal liability-wasted costs-ordered only if obvious case of dishonesty, misconduct, default or serious negligence, not mere mistake or error of judgment-misconduct includes abuse of litigation process-obtaining adjournment to amend claim on court”s advice rarely justifies order based on negligence-irrelevant that client legally aided

Attorneys-at-Law-personal liability-wasted costs-issue of wasted costs best decided after trial-attorney to be informed of failing and given opportunity to respond

The plaintiff brought proceedings in the Grand Court against the respondent for breach of a contract of employment.

In proceedings by the plaintiff alleging breach of contract, the respondent applied under O.14, r.12 of the Grand Court Rules for summary judgment. The court indicated to the plaintiff”s attorney, from the appellant”s firm, at the hearing of the summons that the respondent”s application was bound to succeed if the appellant did not amend the

plaintiff”s statement of claim, since the pleadings did not support the claim. The plaintiff obtained an adjournment and leave to amend his statement, but the court, of its own motion, made a wasted costs order against the appellant on the basis that the defect in the pleadings had arisen from his negligence and, since the plaintiff was legally aided, the respondent should therefore be compensated for the delay by the appellant. The respondent did not seek to support the court”s order.

On appeal against the order, the appellant submitted that (a) the court had no power to make a wasted costs award against him, since he had not acted negligently or unreasonably, and was guilty of no professional misconduct; and (b) the court had wrongly taken into account the fact that the plaintiff was legally aided in making its award.

Held, allowing the appeal:

(1) The court”s jurisdiction to make a wasted costs order was founded on the attorney”s duty to the court to perform his role as an officer of the court in promoting the cause of justice. Dishonesty, misconduct, default or serious negligence on the part of an attorney were sufficient to warrant an order, but mere mistake or error of judgment were not. Negligence in this context meant failure to act with the competence reasonably to be expected of the profession. Conduct amounting to an abuse of the court”s process, such as the use of litigation for an improper purpose or the unjustifiable initiation or conduct of proceedings, could result in an order against the attorney responsible. The court should be slow to make such an order save in an obvious case and, if there was to be a trial, the matter was best left until the end of it save in exceptional circumstances. The attorney had to be informed clearly of his failing and given the opportunity to respond (para. 10; para. 12; paras. 15–17).

(2) The appellant had acted according to his client”s instructions. His failure to plead facts that might have sustained a cause of action was a possible error of judgment rather than a negligent act. He had sought the adjournment for which the wasted costs order was made on the advice of the court with the understanding that the defendant would otherwise be granted summary judgment against his client. His conduct was not an abuse of process or unjustifiable, and only in exceptional circumstances should a wasted costs order be made against an attorney seeking an adjournment for this purpose. The fact that the plaintiff was legally aided was not in itself a good reason for making the order. The order would be vacated (para. 9; paras. 18–21).

1 ZACCA, P....