14 July 2020

Plaintiff Lawyers Ordered to Pay $140,000 to Insurer

Kim v Han and AAI Limited M4136/8 Mark O’Connor
Mark O'Connor Compensation Lawyer

A recent decision of the Queensland Magistrates’ Court provides a stark reminder to lawyers that their first duty is to the court and the administration of justice rather than to their clients. 

In Kim v Han and AAI Limited M4136/8, a magistrate considered the issue of legal costs to be awarded in the aftermath of judgement having been given against a plaintiff after a failed compulsory third-party motor vehicle personal injury claim.

The court was critical of both the plaintiff and his lawyers regarding the way the litigation was conducted, for attempts to hide or destroy critical evidence and for the running of the case at all.

The magistrate found that the plaintiff had downplayed injuries suffered in earlier accidents.

He had deleted social media posts in a deliberate attempt to conceal critical evidence.

The magistrate found that the case was prosecuted in a flagrant disregard of the plaintiff’s obvious capacity to perform tasks which he said were beyond his physical ability. 

The magistrate found, as the case developed, that it was clear that the plaintiff suffered no compensable injury.

The magistrate was also critical of the plaintiff’s lawyer’s conduct in having apparently completed a claim document after it had been signed by his client.

The magistrate found that from the outset, the claim must have appeared dubious to the plaintiff’s lawyers. This was compounded by the lawyer’s failure to disclose relevant Instagram posts, the lawyer’s apparent knowledge of the plaintiff’s true physical activity and capacity, and the lawyer’s close personal association with the plaintiff.

The magistrate accepted the defendant’s submission that a solicitor who unreasonably initiates or continues a court proceeding which a solicitor knows, or ought to have known, has no reasonable prospects of success may be subject to an order for payment of the other party’s costs.

The magistrate made an order that the plaintiff’s legal firm and the directors of the firm personally pay the insurer’s indemnity costs in the sum of $140,000.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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