COVID-19 restrictions did not excuse delay by solicitor

Sep 2020 |

The Supreme Court of New South Wales has made a personal costs order against a solicitor for costs thrown away as a result of his delay resulting from COVID-19 restrictions.1

Background

The plaintiff, having had a costs order made against him by the NSW Civil and Administrative Tribunal (NCAT) was granted leave to appeal that decision by the Appeals Panel of NCAT.

However, the plaintiff’s solicitor failed to file the necessary summons to commence an appeal within the 28 day time limit due to what he described as ‘administrative delays’ as a result of COVID-19. The plaintiff filed an application seeking an extension of time to commence an appeal seven weeks out of time.

The solicitor filed an affidavit providing an explanation for the delay, which stated that:

  • On 13 February 2020, he instructed his assistant to enter the relevant date for filing the plaintiff’s application in his electronic diary, but she failed to do so.

  • On 17 February 2020, he prepared a brief to senior counsel to advise and appear on behalf of the plaintiff in relation to the appeal. Due to an administrative oversight in his office, and because he had to relocate his office to his home due to COVID-19 restrictions, the brief to senior counsel was not delivered until 3 April 2020.

  • On 1 April 2020, the solicitor for the defendants emailed him, noting that the time to commence an appeal had lapsed and demanding payment of its costs. It was at this time that he realised that the brief to senior counsel had never been sent.

  • On 3 April 2020, having now received the brief, senior counsel advised him that he required three to four weeks to draft the summons commencing an appeal.

  • On 30 April 2020, the summons was filed.

The solicitor stated that he would consent to a personal costs order in favour of the defendants for any costs thrown away by reason of the delay in complying with the Appeal Panel’s orders, namely filing the summons.

The defendants’ solicitor provided affidavit evidence that throughout the proceedings there had been a pattern of the plaintiff’s solicitor failing to diarise dates or otherwise comply with timetables, contributing to the protraction of proceedings. The defendants’ solicitor also pointed out that no relevant restrictions were legislated until 31 March 2020, well after the expiry of the appeal period.

Decision

The Supreme Court held that the delay in filing the summons had been satisfactorily explained, and that an extension should be granted in circumstances where the delay was not caused by the plaintiff himself. As such, the Supreme Court stated that the plaintiff ‘should not be penalised for his solicitor’s mistakes’.

However, the Supreme Court described this as ‘a borderline case’, but held that in circumstances where the solicitor agreed to personally pay the costs thrown away as a result of the seven week delay it would exercise its discretion to grant the extension. 

Conclusion

This case indicates the Courts’ unwillingness to tolerate without penalty non-compliance with court ordered timetables and legislative due dates, even if the delay is caused by the unprecedented affects of COVID-19 and the associated restrictions on the legal industry.

It is a warning to solicitors that the Courts may not only hold them accountable for any such delays, but may hold them financially liable for the associated costs.

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1 Rodny v Stricke (No 2) [2020] NSWSC 1126.

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