Firth v Latham

The case of *Firth v Latham* concerned an appeal to the New South Wales Court of Appeal following a decision by a District Court judge. The primary dispute involved an application by a claimant (Firth) for leave to appeal against orders made in proceedings where a solicitor was ordered to pay costs awarded against the plaintiff. The appeal also touched upon the effect of s43A of the *Civil Liability Act* on the claimant's original claim.

The Court of Appeal was required to determine whether the trial judge had erred in exercising their discretion under s348(1)(a) of the *Legal Profession Act* regarding the prospects of success of the claimant's case at the commencement of the trial. A further issue was the application of s345 of the *Legal Profession Act* in assessing those prospects. The court also considered an application for leave to cross-appeal by the second opponent.

In dismissing the claimant's appeal, the Court of Appeal found no error in the trial judge's exercise of discretion. The court applied the principles governing the assessment of "reasonable prospects of success" under the *Legal Profession Act* and the discretionary powers of a judge in awarding costs against a legal practitioner. The court also refused leave to cross-appeal by the second opponent.

Consequently, the claimant was ordered to pay the costs of the application for leave to appeal and the appeal itself. In a related matter, *Latham v Fergusson*, the opponent was ordered to pay the claimant's costs of the application for leave to appeal and the appeal, as well as the claimant's costs of the proceedings before McGuire DCJ.