Order 22 Rule 65 of the National Court Rules 1983 is headed Personal liability of solicitor for costs.
Rule 65(1)
Where 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 that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard —
(a) disallow the costs as between him and his client; and
(b) direct the solicitor to repay to his client costs which the client has been ordered to pay to any other party; and
(c) direct the solicitor to indemnify any party other than his client against costs payable by the party indemnified.
Paragraph (a) means the lawyer cannot charge the client for the wasted work. Paragraph (b) means the lawyer refunds what the client had to pay the other side. Paragraph (c) means the lawyer pays the other party’s costs directly.
They are cumulative — the sub-rule joins them with “and” — so more than one may be ordered.
Note also “whether personally or through a servant or agent”: a principal is answerable for the default of staff and of an agent firm.
The Court may make an order only after giving the solicitor a reasonable opportunity to be heard. That is a mandatory condition, not a matter of practice.
And by sub-rule (3), the Court may, before making an order under Sub-rule (1), refer the matter to the taxing officer for enquiry and report.
Rule 65(2)
Without limiting the generality of Sub-rule (1), a solicitor is responsible for default where proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor —
(a) to attend in person or by a proper representative;
(b) to file any document which ought to have been filed;
(c) to deliver any document which ought to have been delivered for the use of the Court;
(d) to be prepared with any proper evidence or account; or
(e) otherwise to proceed.
Not attending, or attending unprepared, or failing to file what should have been filed — each is enough where the result is that the matter cannot conveniently proceed, or fails, or is adjourned without useful progress being made.
Paragraph (a) is worth noting for its wording: in person or by a proper representative. Sending an agent who cannot deal with the matter is not compliance.
Sub-rule (2) does not limit sub-rule (1) — it gives examples. Conduct outside the list may still be misconduct or default.
Rule 65(4) empowers the Court to order that notice of proceedings or of an order against a solicitor be given — a reminder that such orders are not confined to the courtroom.
Rules 56 and 57
Rule 57 — where, in proceedings before the taxing officer, a solicitor for any party (a) is guilty of neglect or delay; or (b) puts any other party to unnecessary expense, the taxing officer may order the solicitor to pay costs to any party.
Rule 56(1) — a solicitor who fails to file his bill for taxation within the time fixed or otherwise delays or impedes the taxation shall not, unless the taxing officer otherwise orders, be allowed the fees for preparing the bill and attending the taxation.
Rule 56(2) — if one-sixth or more of the amount of the bill … is taxed off, the solicitor shall not be allowed those fees — with no discretion to relieve.
Rule 57 does not require misconduct. Neglect or delay, or putting another party to unnecessary expense, is enough — and the taxing officer, not a Judge, may make the order.
See taxation of costs.
Related provisions
Mediation. Order 2 Rule 11(2) of the ADR Rules 2022 allows costs on an indemnity or lawyer and client basis where a party has not participated in good faith — and Rule 10(9) imposes six duties directly on each lawyer or legal representative who attends a mediation, including to act in good faith and not do anything to impede, inhibit, or delay it, and to prepare adequately. Rule 10(10) precludes a lawyer who did not attend and meaningfully participate from providing any advice that operates against a mediated agreement. See bad faith in mediation.
Election petitions. Section 222(1) of the Organic Law on National and Local-level Government Elections restricts representation altogether — see representation in election petitions.
- Attend, or send someone who can deal with the matter. Rule 65(2)(a) is the most commonly engaged paragraph.
- File and deliver on time. Paragraphs (b) and (c) require no more than that.
- Come prepared. Paragraph (d) reaches a failure to be prepared with any proper evidence or account.
- If an adjournment is unavoidable, explain it on the record — the trigger is an adjournment without useful progress being made.
- Ask to be heard. Rule 65(1) entitles the solicitor to a reasonable opportunity to be heard, and sub-rule (3) allows a reference to the taxing officer for enquiry and report.
- Do not overstate a bill. The one-sixth rule in Rule 56(2) admits of no discretion.
Sources
- National Court Rules 1983 — O 22 rr 56, 57, 63–65
- Alternative Dispute Resolution Rules 2022 — O 2 rr 10, 11
- Organic Law on National and Local-level Government Elections — s 222
The Lawyers Act 1986 and the Professional Conduct Rules 1989, which govern professional discipline separately from costs, are not available on PacLII.
Before relying on anything here, read the current text of the National Court Rules 1983 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.