LAWYERS GIVING EVIDENCE 1: ENGAGING “TOTALLY INAPPROPRIATELY WITH LEGAL SUBMISSIONS”
An earlier post reported on the dangers of lawyers giving evidence when that “evidence” is in fact a set of legal submissions. It is clear that this issue is not confined to one jurisdiction. This can be seen from the judgment of Mr Justice Garrett Simons in the case of McElvaney v Standards in Public Office Commission  IEHC 644. This is a different jurisdiction but is an example of a judge taking the view that using an affidavit to make submissions is not desirable conduct.
The applicant had failed in judicial review proceedings. The hearing was concerned with the applicant’s argument that, despite having been unsuccessful, he should not have to pay the respondent’s costs. One issue that arose was the conduct of the applicant’s solicitors.
THE AFFIDAVIT THAT ENGAGED WITH LEGAL SUBMISSIONS
The judge, in refusing the applicant’s application and ordering that he pay the costs, commented on one particular aspect of the conduct of the case.
9. The court was also concerned with the fact that the solicitor acting on behalf of the applicant filed an affidavit which did not comply with the rules and, in particular, engaged entirely inappropriately with legal submissions. The court must maintain discipline over its proceedings and it seem to me that in a case such as this where the applicant and its legal advisors have behaved in manner which the court has been critical of, it would be entirely inappropriate to reward that behaviour by departing from the ordinary rule that costs follow the event.
10. So, in summary, therefore, I am satisfied that this is a case where costs should follow the event. The application for judicial review was dismissed in its entirety, and there was no factor which would indicate that anything other than the ordinary rule should apply. In addition to that, I am satisfied that, given the conduct of the applicant and its legal advisors, it would be inappropriate, to reward that behaviour by departing from the ordinary rule that costs follow the event.”