By Stephanie Barclay and Natalie Sullivan -
Snapshot
- Solicitors have a duty to protect clients’ interests even if that means telling them their case is doomed to fail.
- Doomed to fail means that, on the information available, the solicitor considers there is no arguable claim or defence, and no reasonable prospect that position will change if more information is obtained.
- Where that duty is not observed and adverse costs orders are made, any application to vary those orders must be brought within a strict 14‑day timeframe.
For many solicitors, a significant part of their practice involves representing clients in litigation. Sometimes clients use the litigation process as a means to negotiate a commercial outcome of the dispute or to seek another strategic advantage against their counterparty. Regardless of the client’s motivation in pursuing litigation, if the client’s claim or defence is doomed to fail, the solicitor should give that advice to the client in clear and unequivocal terms. Even where the advice is unwelcome, the advice is important to protect the client from incurring costs which will become wasted.
Whether a case is doomed to fail is an evaluative assessment. Victorian Xray Group (Dandenong) Pty Ltd v Anthony Mark Malouf t/as Malouf Solicitors [2026] NSWCA 5 (‘Malouf’) is a recent example where former clients of a solicitor unsuccessfully alleged they ought to have been advised their cases were doomed to fail.
