Conduct and service

Advise at the outset

Complaints about costs are often not about the basis on which the client is going to be charged.

These complaints, particularly in civil litigation, are more usually about failure to advise on how costs are accumulating and/or failure to give the client relevant advice at the outset of the retainer.

Usually, the client commits himself to an action which he later finds has costs implications of which he had not been warned.

These were the circumstances that led to a complaint where the solicitors were consulted by the defendant in a defamation action.

The allegations were spurious and the solicitors had the claim dismissed with costs.

Costs fell to be assessed.

After that had been done, the claimant tried to get the costs hearing re-heard.

It took a year to dispose of that application.

The solicitors then set about enforcing the order for costs.

Voluntary payment was not forthcoming, so a warrant of execution was issued, but the claimant was not at the address given.

Bankruptcy proceedings were prepared but before they could be issued, the claimant offered to make periodic payments.

The offer was accepted but the claimant died after only one instalment had been paid.

Costs now had to be enforced against the estate, and the solicitors advised that the client could apply for a grant of representation as a creditor.

The solicitors now asked their client to pay their bill of more than 2,000.

This prompted a complaint from the client that he had never understood that, even if he were successful in his defence and obtained an order that his opponent should pay his costs, that he was still responsible for payment.

In effect, he had to pay his solicitor's account himself and then refund himself from any costs that were recovered.

The client said he was told this only after the death of the claimant.

The client was right.

He had not been told about his responsibilities regarding costs.

As a defendant, perhaps it was not that relevant.

After all, presumably he had to defend the action and would still have done so had he been given the relevant information.

However, it is something that should be borne in mind, especially when instructed by a claimant who has a choice as to whether to proceed or not.

Every case before the adjudication panel is decided on its individual facts.

This case study is for illustration only and should not be treated as a precedent