Karabay v Carr

Judgment 1HIS HONOUR : On 11 March 2011, I vacated the hearing in this matter, which had been scheduled to commence on 14 March 2011. I reserved the costs thrown away or occasioned by reason of the adjournment. These reasons deal with that issue.

Background 2The plaintiff sues his former solicitors for professional negligence. It is for present purposes unnecessary to recite the details of the claims that he makes, other than to observe that he frames his causes of action in contract and in tort. 3Registrar Bradford listed the matter for final hearing commencing on 14 March 2011 when it came before him on 30 September 2010. It was given an estimate of between seven and ten days. The Registrar made directions at that time in accordance with Final Orders of Practice Note SC CL 7. Drexler & Partners then represented the plaintiff. However, that firm served a notice of intention to cease acting for the plaintiff on 10 November 2010. A notice of ceasing to act was served on 23 November 2010. Problems then developed in the plaintiff's camp. 4The proceedings came in due course before Hoeben J on 8 December 2010. The plaintiff appeared in person. He informed the Court that he had retained a nominated firm of solicitors to appear for him. That firm later informed the defendants that the plaintiff had not in fact retained them. 5On 11 January 2011 the defendants' solicitor wrote a letter to the plaintiff in which they expressed some concern about the state of readiness of the proceedings for hearing, having regard to the plaintiff's failure to comply with some of Registrar Bradford's earlier directions. They threatened to re-list the matter before Hoeben J if no satisfactory response to their letter was received. No reply to that letter was received from the plaintiff. 6The defendants' solicitors again wrote to the plaintiff on 25 January 2011 advising that they had written to the Court seeking to have the matter re-listed. Before that occurred, Mr Clough, the plaintiff's newly retained and now current solicitor, telephoned the defendants' solicitor advising that he had been approached by the plaintiff to appear for him in the proceedings. The plaintiff did not have the file, which was with his former solicitors. They required an undertaking as to their fees before they would release it. An application to get the file was scheduled to be heard on 9 February 2011. Mr Clough said in the telephone conversation that he believed that it was impossible for the matter to proceed on 14 March 2011 and that he anticipated a need to apply for an adjournment. This was some five weeks or so before the trial was due to commence. Mr Clough's prediction was accurate. 7The matter came before Registrar Bradford on 9 February 2011. The plaintiff's former solicitors were ordered to produce their file, subject to some conditions, by no later than 5.00pm the following day. After some argument the Registrar granted the parties liberty to apply for the matter to be re-listed before Hoeben J, but not before Mr Clough had had an opportunity to review the file and liase with the defendants' solicitor. 8On 22 February 2011 the defendants' solicitor wrote to Mr Clough confirming that the proceedings had been listed before Hoeben J for directions on 24 February 2011. The letter sought further detailed particulars and drew attention to the plaintiff's failure to comply with certain previous orders. Mr Clough attended the directions hearing on 24 February 2011 and informed his Honour that he had only been approached by the plaintiff to appear for him as recently as January that year. He said that he had received 16 boxes of files the previous week but more documents were expected. He expressed the view that the plaintiff's loss of opportunity case would appear not to have been properly considered by any previous solicitors and that he had instructions to retain a forensic accountant to assist with it. He indicated that he took objection to some of the material requested by the defendants in their solicitor's recent letter. Mr Clough provided the defendants with a schedule of damages. 9Between 28 February and 4 March 2011, several letters were exchanged between the solicitors. The matter returned to Hoeben J on 7 March 2011. The plaintiff's representative informed his Honour that he had not seen all of the relevant witness statements or other documents necessary to permit him to form a view about the readiness of the matter and he confirmed that the plaintiff proposed to serve a report from an accounting expert. His Honour expressed a preference for retaining the hearing dates and indicated that it was up to the plaintiff's representatives to seek to vacate the hearing if that appeared to be necessary. His Honour confirmed the hearing dates and made no order as to costs. 10Mr Clough advised the defendants' solicitor on 9 March 2011 that he had instructions to apply for an adjournment. As anticipated, he had not been able to prepare the matter for hearing in the time available to him since he came into the matter. The defendants' solicitor foreshadowed that they would apply for costs in those circumstances, estimated to be in the order of $55,000. The application came before me two days later as earlier indicated.