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Ravina Shamdasani

Judges need more power to keep legal representatives in check, says justice department

Judges should be given the power to penalise lawyers whose misconduct or incompetence in criminal cases wastes court or litigants' time and money, the Department of Justice is proposing.

In a consultation paper circulated internally this month to solicitors, barristers, the judiciary and legal academics, the department answers calls made by several judges since the handover for the power to make 'wasted costs' orders against errant lawyers.

The controversial issue was evaded just before the handover because of serious concerns among lawyers about how the power could hamper their professional ability to  represent their clients.

At present, the courts can only make such an order if a legal representative is late or fails to appear at a hearing without reasonable cause.

The proposal is that if any costs are incurred by a party to legal proceedings as a result of delays caused by the misconduct, improper act or omission of a legal representative, judges should have the power to order them to pay the costs.

It cites comments by frustrated judges in three Court of Appeal cases in the past few years  who lamented that the court could do nothing but 'wring its hands in some dismay at the charade that is constituted by the wasted costs provisions' in Hong Kong law.

One legal academic welcomed the move but described it as 'cautious'. Eric Cheung Tat-ming,  of the University of Hong Kong law faculty, said judges could already make such orders in civil cases where the lawyer 'misconducts himself or the court considers the case has been handled negligently without amounting to misconduct'.

'The administration has taken a cautious approach by not including pure negligence cases in its proposal to extend this power to criminal cases,' he said.

'I agree with this approach because it would cut down the worry about creating a grey area. If a judge gets annoyed at you for arguing some dumb point, he cannot make such an order. We cannot inhibit lawyers from fearlessly defending clients even though a case may be weak.'

Professor Cheung said the approach in England and Wales was much broader.

Bar Association  chairman Philip Dykes  SC said he was consulting his members on the matter, but he raised several concerns.

'Launching an inquiry into all except the clearest of cases is going to result in more expenditure of public money,' he said. 'In England and Wales, wasted costs orders are used with great caution. Taking two days of court time to decide whether or not a barrister should be sanctioned with costs is not a terribly good use of court time.'

Mr Dykes also said it would not be in the interests of justice if prosecutors or defence counsel were deflected from calling witnesses at the last minute for fear a judge might make a costs order against them for previous errors of judgment.

The  paper says the public interest in the ability of legal representatives to conduct their cases fearlessly 'does not confer the freedom to conduct cases in an improper, unreasonable or negligent way'.

A Law Society spokeswoman said the solicitors' body would meet to discuss the issue this week.

The judiciary could not respond yesterday, but  in his January speech at the opening of this legal year,  the chief justice called for such a power.

'The power to make [wasted-costs orders] should be confined to serious acts or omissions resulting in wasted costs and would only be exercisable in exceptional circumstances,' he said.

The Department of Justice  will be presenting its proposals to the Legislative Council's panel on administration of justice and legal services after this consultation.

Key proposals

Lawyers who practise in criminal courts could  pay 'wasted costs'  for:

- improper or unreasonable acts or omissions

- undue delays

- misconduct or default



Lawyers who waste court time face fines