Can a lawyer be ordered to pay special costs against counsel for reprehensible conduct?
British Columbia, Canada
The following excerpt is from Pierce v. Jivraj, 2014 BCSC 926 (CanLII):
Special costs may be awarded against counsel for reprehensible conduct: Payne v. Garnett, 2013 BCSC 272 at para. 8; Nazmdeh at para. 61. The discretion to award costs against counsel is broad, but it must be exercised sparingly, with restraint and only in rare or exceptional cases: Nazmdeh at para. 103. Care and restraint are called for in awarding costs against counsel because it may not be clear whether the unsuccessful party or counsel is at fault, and solicitor-client privilege deserves a high degree of protection: Nazmdeh at para. 104. Counsel should not have to breach that privilege to defend their actions: Nazmdeh at para. 108.
Failure to provide full and frank disclosure in an ex parte application may constitute reprehensible conduct. The issue is succinctly set out in Watson v. Slavik, [1996] B.C.J. No. 1885 at para. 12, where Romilly J. stated:
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