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18.1
The consultation response
The lowering of the threshold canvassed in Proposal 33 attracted little support. While
stating that the proposal was not necessarily opposed in principle, the Bar Association
pointed to complications being encountered in the developing case-law in England and
Wales. The Law Society was in favour of a greater use of disciplinary costs orders
where there was misconduct or "sharp practice", but it is not clear that they supported
liability based on negligence. One set of chambers objected to Proposal 33
on the
ground that it was inextricably linked to important issues of substantive law which had
not yet been settled, making it undesirable to extend liability in an uncertain context.
The BSCPI thought that any such extension of liability should be deferred until the
reforms being proposed had bedded down. A certain solicitors' firm pointed out that
extended liability for wasted costs could lead to raised professional indemnity
premiums and higher costs. A number of other respondents
considered the O 62 r 8
scheme sufficient. The DOJ supported the extension, but thought it should not extend
to cover "improper" conduct which it took as entailing too great a lowering of the
threshold.
In contrast, the suggestion in Proposal 34 that barristers should also be liable for
wasted costs received support from most quarters on the basis that different treatment
of solicitors and barristers in this context could not be justified.
However, the Bar
Association stressed the need always to bear in mind the duty of the barrister
fearlessly to uphold the interests of the client, to accept instructions on the cab rank
principle, and so forth. The BSCPI was opposed to the proposed extension.
Notes
Including two firms of solicitors and the HKMLA.
Including the Bar Association, the Law Society, the DOJ, the HKMLA, one set of barristers'
chambers, the BCC and two firms of solicitors.
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