Law firm hit with time-wasting penalty

A high court judge has warned that lawyers whose failure to adequately prepare for their matters, resulting in adjournments, could find themselves appearing before the General Legal Council or before the court, after slapping Hollislaw firm with a $25,000 wasted cost order.

The law firm representing claimant Cliffroy Francis was ordered by the judge, during a damage assessment hearing in December, to pay the wasted court cost for the defendant after the firm’s representative requested an adjournment despite indicating a readiness to proceed. There were six previous adjournments.

A waste court order is made by the court on its own volition or on the application of a party in the proceeding where cost is incurred as a result of any improper, unreasonable or negligent act or omission on the part of any legal practitioner or any employee of the legal practitioner.

Justice Tania Tulloch-Reid, in making the rare order, described the claimant’s state of preparedness as lacking before delivering her warning.

“Counsel who appear in the assessment court are of the view that adjournments can be applied for and will be granted willy-nilly. This is not so,” Justice Tulloch-Reid highlighted in the written order.

The judge emphasised that once a matter is listed, documents and bundles are to be filed and served in sufficient time and the parties are to appear on the scheduled date ready to proceed. Adjournments, she said, should only be sought on reasonable grounds.

“Counsel may find themselves at the General Legal Council or in court themselves as the defendant if they do not understand the importance of being ready on the date that the court sets for the trial or the assessment of damages to take place,” she warned.

Furthermore, Justice Tulloch Reid said: “Where in the judge’s discretion an adjournment is granted and the reason the adjournment has to be granted is because of the attorney’s failure to ready the matter so that the hearing can proceed, the attorney may find that he or she will have to pay wasted costs.”

March 2005 accident

Attorney-at law Jade Hollis, of Hollislaw, was initially contracted to represent the now 25-year-old claimant, who was injured in a motor vehicle accident in March 2005. But attorney-at-law Ian Davis was instructed by the firm to represent the claimant during the damage assessment hearing and has been involved in the matter since 2019.

When the hearing resumed on December 7, 2021, Davis requested an adjournment to furnish the court with the claimant’s witness statement after he had initially indicated that he was going to disregard the document but changed his mind after the judge asked him if he was really going to proceed without the testimony.

That request was after the defendant’s lawyer, Linton Walters, indicated that he had not been served with a further witness statement, a crucial part of the claimant’s case. Davis, after consultation, informed the court that he would proceed, using the witness’ first statement.

Davis was consequently ordered to reappear before the judge on December 20 to make submissions on why the court should not go through with the wasted cost order.

The attorney, in his defence, argued that his application for adjournment was made pursuant to the Civil Procedure Rule and was aimed at assisting the court in dealing with the matter fairly. Further, he said that his client would have been at a disadvantage without the witness statement.

Among the other arguments put forward by the attorney was that the adjournment was unavoidable and that in making the decision, the court was to consider the interest of the administration of justice and that the 65-page bundle, which was filed on behalf of the claimant, was voluminous.

Davis said that he was confused because his instructing counsel had filed the same documents twice.

But the judge, in disagreeing with Davis’ arguments, noted that justice was not just for a claimant, but also for defendants.

“This is why Lady Justice is blind and the scales she carries are to be balanced. I also do not agree that the adjournment was unavoidable. Counsel for the claimant had 10 years to get ready for the assessment of damages. Ten years later, they were still not ready to proceed.

“In a case where the issue to be considered by the court is not complex and the only live issue is the issue of quantum, there is no reason for the matter to take in excess of 13 years (counting from the date the claim was initiated) to be completed,” she said.

Davis, when contacted, referred The Gleaner to Hollis, who he said was the instructing attorney for the claimant.

Hollis, in a written response, said she respected the court’s order.

“The matter has been the subject of some adjournments for different reasons, including the court processes over which the parties have no control, such as the matter not being listed on the court list for hearing.

“Other reasons include the defendant filing an application to set aside the judgment as well as the defendant raising other objections which were successfully defended as recently as September 16, 2021, and due to the unavailability of counsel for health reasons,” said Hollis.

The attorney insisted that what was important was that the substantive matter is set for next week, as the defendant has not been successful in setting aside the judgment in favour of her client, or in the other objections raised by the defendant.

“All that is left to be determined is the issue of how much our client is to be paid as the issue of liability has been settled in our client’s favour,” Hollis said.

tanesha.mundle@gleanerjm.com