About the only way to get back at a lawyer is to get the court to issue a de bonis propriis order against him. What it comes down to, is that he himself, as a human being (doubtful in some cases), will pay all the wasted legal costs for the trial / application which he lost. It is punishment for wasting the court's time.
It is not done easily and is quite rare for it is usually the client (you) who pays for the costs and not the attorney who gets paid, win or lose. As you probably know the legal profession (which kicked me out with all due ceremony about ten years ago) is not known for taking any risks with their own money. Hence the lawyer is almost always paid before the trial / application starts just to ensure that the client don't feel he should not pay for services not properly rendered, for example, where his case is thrown out of court and hear my words, it happens a lot.
If you bothered to read any of my legal books (very boring for sane people I assure you) you would know that there is no such thing as an 80% chance of winning or whatever you lawyer tells you...in court it is 50/50. You either win or you lose and in very rare cases have something called "in absolution of the instance" where you can go back to court to prove your case at a later stage. However, that is not a cost order which we are talking about today and it is important for we can make a lot of smart deductions from cost orders.
Historically, to stop the courts from being flooded with spurious claims (hallo American Lawyers) we follow the English Legal Tradition whereby the losing side of the civil claim almost automatically pays for the other side also. And I absolutely assure you the bill is then loaded as far as you can get away with it. In fact it is so important to lawyers that many highly experienced legal secretaries (severely underpaid too) do nothing else but bills of cost...the same as a private hospital where every pill is counted and charged for. In the legal profession time is money at a ridiculous fee rate and every letter / email / telephone conversation etc is added up...they even count the words in every letter and charge you for it.
You can read my book Tricks of Trade - Memories of a Rogue Lawyer to see how these costs are artificially (but legally) increased to your detriment. Yes there are balances in place to prevent too obvious buggery but you will still pay dearly for losing a civil court case...it ruins people financially so must not be lightly undertaken. The reason though is as stated above - to prevent too many cases and especially spurious ones where you never had a case to begin with.
The law deals with spurious people also. You get those strange fellows who want to sue and keep on suing because they have mental problems. Hence their right to sue is taken away in a rather complex procedure where they cannot sue anyone unless a High Court Judge agrees he actually has a case. This happens very rarely indeed, but is necessary.
Then you get a no-costs order where the Judge decides it was touch and go who won and has more sympathy for you than is stated in open court. At such times each party pays his own costs. It shows you almost won and is the best way to lose a civil court claim if losing can ever be good.
Now to obtain a cost order you must not only win your case but ask (in law it is called a prayer) for the cost order to be awarded to you. You will notice at the end of each summons or application there is a prayer clause in which you will ALWAYS find the words "order of costs" or similar. Hence you will not find a cost order taken lightly by anyone. It is serious money.
Then we have the lawyer's nightmare, the de bonis propriis order. It is not so much about the money - you can always find a client to pay for it, even if he does not know it yet, but a slap in the face. It points toward professional incompetence; for the court felt its time was wasted so much with a spurious claim that the Judge decides that particular lawyer needs a wakeup call. This is not always the case, though it is seen as such by everyone else.
At times it is used as revenge by banksters on a lawyer who decides to take them on as happened recently in the R699 car scheme in Port Elizabeth. Now I don't know the merits of the case and I do know the cost order may or will be challenged (appealed) later on, but from what I read on the side the banksters must have gotten the fright of their lives and hence this order against the attorney who led an application to sue them en massa (class action). It was in my opinion done to prove a point, though they will of course deny it - probably a computer ordered them to do so, for banksters are the only people in the world I know of who subject themselves to the rule of a computer. You always hear them say "the computer declined your application" or whatever other nonsense they spout when cornered. On the other hand, I take my hat off to that attorney to even attempt to take the high and mighty servants of mammon on. That shows guts we don't usually find in that profession, which is only about "me, my bank account and my ego."
In my book about banksters or your worst enemy as I refer to banks (and to be fair, all other creditors) I often say it is a well-known tactic to use highly overpaid lawyers to keep hammering you (did it myself). Hence you run out of money at some stage and they win by default and the balance is restored to their favour for no bankster ever makes a mistake in your favour. It is all very legal and an excellent tactic which is why I wrote the book - so you can defend yourself. Note also that I said many times in the book if you owe money, and can afford to pay so, then do so. Or make some sort of a settlement for they will come after you.
By the way, the ridiculous fees did not stop the civil courts from being flooded - it will take you almost 5 years to get your hearing in court because of the back log. And so it is and will be. We can deduce a lot from what the Judge does with an order to costs - for the legal scholar, it tells its own story - but let us wait and see what happens now.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a practicing commercial law attorney for eight years. He also wrote several books on business, law, counter terrorism and security issues. He is a widower and lives in Bloemfontein, South Africa.