Practice Insights – “Ceasing to Act” in Court Proceedings

Practice Point

Re Bahadur [2021] HKDC 1336 is a recent reminder that, in contentious proceedings, “ceasing to act” and formally “coming off the court record” are different but related matters. The former is a prerequisite to the latter. To come off the court record, a solicitor must not only cease to act – they must also: (i) apply for a court order seeking a declaration that they have ceased to act for the party in the proceedings; and (ii) comply with the formal requirements of RHC/RDC O. 67, r.6(1). In short, until such an order is obtained, served on every other party and filed with the court registry, the solicitor is officially still on the court record.

Context

Re Bahadur appears to have started off as a relatively straightforward personal injury case which was set down for a two day assessment of damages hearing commencing on 25 August 2021. Things appear to have gone awry from there. A day before the hearing, the plaintiff’s solicitors applied to come off the court record and the summons was listed before a Master at the earliest opportunity – which, it so happens, was the same morning that the assessment hearing was due to begin. The solicitor’s summons (to cease to act) was adjourned because it had, apparently, not been served on the plaintiff (O. 67, r. 6(2)).

This appears to have left the Judge presiding over the assessment hearing with little alternative but to adjourn the hearing – which he did, to 9 September, 2021. In the meantime, the Master approved an order that the plaintiff’s solicitors cease to act. However, before the plaintiff’s solicitors could officially come off the court record, they had to comply with the three requirements of O. 67, r. 6(1) – namely:

  • serve the order on every other party;
  • procure that the order be “entered in the Registry”; and
  • file the order and certify that it had been duly served.

The plaintiff’s solicitors did not attend the assessment hearing and it became apparent that the defendant’s lawyers had not been served with a copy of the order allowing the plaintiff’s solicitors to cease to act. At the hearing, the plaintiff (who was not legally aided) asked to withdraw his claim without being penalised as to costs. This left the Judge to determine the costs between the parties, while noting that the plaintiff’s solicitors were officially still on the court record as acting for the plaintiff.

Costs

The Judge directed that the plaintiff’s solicitors show cause why they should not be ordered to pay the defendant’s costs from the date that the case was set down for trial to the date of the hearing. The Judge noted that that plaintiff’s solicitors had not applied to cease to act until the “last minute” when, in practice, they could have done so at the latest when the case was set down for trial. Further, even after the order to cease to act had been made, the plaintiff’s solicitors had failed to comply with the three requirements of O.67, r. 6(1). The Judge stated (at paragraph 34 of his judgment):

“As officers of the court, they have a duty to explain to the court why they did not turn up at the adjourned assessment of damages on 9 September 2021. Further, they also have to explain why they had only made the application to cease to act on the first day of the assessment of damages.”

Some Takeaways

  • When a solicitor wishes to come off the court record, it is not enough to cease to act, apply to cease to act and to obtain a court order. The solicitor also must comply with the three requirements set out in O. 67, r.6(1) – until such time, the solicitor is officially still on the record for the party in the proceedings.
  • Generally, a retainer to conduct or defend litigation is an instruction to conduct or defend the action to the end, unless and until (for example) the solicitor is discharged or formally ceases to act.
  • Engagement letters are important – in particular, as with any contract, the termination provisions. The more common reasons for withdrawing from a case are a (non-legally aided) client’s failure to pay costs on account and a client’s failure to give instructions.
  • Even with relatively straightforward proceedings on behalf of non-legally aided clients, it is important to get money on account.
  • While ceasing to act in court proceedings is a private matter between the client and the solicitor, it requires a summons and affidavit/affirmation in support. As Re Bahadur demonstrates, late applications to cease to act can attract judicial criticism and, if handled incorrectly, expose a solicitor to liability for costs.

 

Editorial Note: As regards a legally aided party, see O.67, r.6(4).

Jurisdictions

Senior Consultant, RPC

Senior Consultant and Accredited Mediator, RPC

A commercial disputes lawyer with over 35 years' experience, David has extensive experience in handling the defence of professional indemnity, financial lines and other special risks claims as well as advising insurers in relation to such claims.

David has worked on the defence of claims in various jurisdictions including England, Hong Kong, Singapore, Malaysia, the PRC, Taiwan, Bermuda and the BVI.  He also has significant experience in handling regulatory and disciplinary matters.

He has considerable experience providing general risk management advice to professionals such as accountants, solicitors, insurance brokers, surveyors and stock-brokers. 

Most recently, he has been developing a practice as a commercial mediator. David is accredited as a mediator by both the Centre for Effective Dispute Resolution (CEDR) and the Hong Kong Mediation Accreditation Association Limited (HKMAAL).