Lawyer Personally Liable For Costs - The Dangers Of A Vexatious Client
Lawyers have been, on more than one occasion, called "hired guns" who will take on any case in order to either win or make money. After all, what is the risk to the lawyer if s/he wins or loses. While that may appear to be the situation to an outside party a recent Ontario Court of Appeal decision shows that the lawyer who takes on any fight for a vexatious client may face real risks in terms of cost consequences.
The case involved an individual who originally sued 62 defendants for negligence and economic loss. Over the course of what would seem to be rather unsuccessful litigation, the individual failed to comply with orders including cost orders. When he failed to appear in court on a contempt hearing, he was held in contempt. He failed to purge the contempt and ended up serving sixty days. In due course, he commenced an action against 39 defendants in what appeared to be an attempt to re-litigate the previous action. The defendants contested the jurisdiction and asked for time to file defences. The individual, or rather his lawyer, noted them in default.
At this point, counsel for the defendants began to send warnings to the individual's lawyer that his course of conduct was driving up litigation costs and that they would seek costs against him personally.
Eventually, the matter made it to the inside of a courtroom for a determination of the merit. After a 3 day hearing, involving 21 of the defendants, the judge dismissed the claim and ruled that it lacked "a scintilla of merit". The judge awarded $84,000 in costs jointly against the individual AND the lawyer.
The Court of Appeal upheld the decision. It noted that this was one of those rare cases where costs should be awarded against the lawyer. This was not merely a weak case but rather a case that was a blatant attempt to re-litigate issues already determined. It was the vexatious and abusive nature of the proceeding that warranted an award against the lawyer.
The Lesson: Lawyers are obligated to remain entry level gate-keepers for the justice system. While a lawyer may take on weak or experimental cases, a lawyer risks "having skin in the game" if s/he takes on a vexatious case.
The Lesson For Lawyers: If the case appears vexatious, it is best to obtain a fully paid retainer including sufficient funds to pay any cost award which may be made on a joint and several basis.
Best v Ranking et al, 2016 ONCA 472 https://www.canlii.org/en/on/onca/doc/2016/2016onca492/2016onca492.pdf
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