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A firm of solicitors has been severely criticised and made to pay costs as the result of its conduct of litigation in the Federal Court.
The firm had advised its client, which was in financial difficulty, that the contemplated proceedings were not winnable on the law or the facts. However, the firm recommended that the proceedings be commenced in order to buy time for the client and to induce the other party to negotiate for a favourable compromise. The proceedings were commenced in accordance with the recommendation. The solicitors conducted the case in a manner which was calculated to cause the maximum delay and frustration to the other party (the defendant) and to prevent the case being brought to trial. Judgment was eventually entered for the defendant and costs awarded against the firm's client. However, the client had gone into liquidation and the defendant was unable to recover any of those costs.
The defendant then took action against the firm for the recovery of the costs, alleging that the firm had commenced the proceedings when its client had no real prospect of success and that the proceedings had been maintained for an improper purpose. The judge who heard this action agreed. He made trenchant criticisms of the firm's conduct and ordered the firm to pay the defendant's costs of the original proceedings. He found that the proceedings and the motivation behind them amounted to an "abuse of process". He said:
" . . . it is not proper, in my view, to adopt a positive or assertive obstructionist or delaying strategy which is not in the interests of justice and inhibits the Court from achieving an expeditious and timely resolution of a dispute. Court resources are finite and so are the resources of most litigants and the Court should not countenance a deliberate strategy of obstruction and delay. If a party instructs its legal adviser to adopt such a strategy the legal adviser should inform the party that it is not proper for it to do so and if the party insists, then the legal adviser should withdraw from acting for that party."
This case is a graphic illustration of the duties of a solicitor as an officer of the Court. Whilst the solicitor must do his utmost to advance the legitimate interests of his client, he must never allow the processes of the Court to be used for any improper or oppressive purpose.