The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in preparing to present the Bank’s case, and the Bank now appealed an order granting such access, arguing legal professional privilege.
Held: The appeal succeeded, and the order for disclosure was revoked.
Lord Scott of Foscote said: ‘the modern case law on legal professional privilege has divided the privilege into two categories, legal advice privilege and litigation privilege. Litigation privilege covers all documents brought into being for the purposes of litigation. Legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given.’
. . and ‘If a solicitor becomes the client’s ‘man of business’, and some solicitors do, responsible for advising the client on all matters of business, including investment policy, finance policy and other business matters, the advice may lack a relevant legal context. There is, in my opinion, no way of avoiding difficulty in deciding in marginal cases whether the seeking of advice from or the giving of advice by lawyers does or does not take place in a relevant legal context so as to attract legal advice privilege. In cases of doubt the judge called upon to make the decision should ask whether the advice relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply.’ and ‘So I must now come to policy. Why is it that the law has afforded this special privilege to communications between lawyers and their clients that it has denied to all other confidential communications? In relation to all other confidential communications, whether between doctor and patient, accountant and client, husband and wife, parent and child, priest and penitent, the common law recognises the confidentiality of the communication, will protect the confidentiality up to a point, but declines to allow the communication the absolute protection allowed to communications between lawyer and client giving or seeking legal advice. In relation to all these other confidential communications the law requires the public interest in the preservation of confidences and the private interest of the parties in maintaining the confidentiality of their communications to be balanced against the administration of justice reasons for requiring disclosure of the confidential material. There is a strong public interest that in criminal cases the innocent should be acquitted and the guilty convicted, that in civil cases the claimant should succeed if he is entitled to do so and should fail if he is not, that every trial should be a fair trial and that to provide the best chance of these desiderata being achieved all relevant material should be available to be taken into account. These are the administration of justice reasons to be placed in the balance. They will usually prevail.’
Lord Carswell said that case law established that: ‘communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial.’ and ‘ The work of advising a client on the most suitable approach to adopt, assembling material for presentation of his case and taking statements which set out the relevant material in an orderly fashion and omit the irrelevant is to my mind the classic exercise of one of the lawyer’s skills.’

Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2004] UKHL 48, Times 12-Nov-2004, [2004] 3 WLR 1274, [2005] 1 AC 610
House of Lords, Bailii
England and Wales
Citing:
Appeal from – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Minet v Morgan CA 1873
A connection with litigation is not a necessary condition for legal privilege to be attracted to a document.
The law on legal privilege had not at once reached a broad and reasonable footing, but reached it by successive steps. . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Cited – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – In Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
Cited – Wheeler v Le Marchant CA 1881
Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
Cited – Regina v A Special Commissioner ex parte Morgan Grenfell and Co Ltd; Regina v Martyn Rounding (HM Inspector of Taxes) ex parte Morgan Grenfell and Co Ltd CA 2-Mar-2001
The inspector of taxes had power to issue a notice requiring access to legally privileged material. The power given by the section included certain exceptions, and those were not to be extended. The special or general commissioners had no power to . .
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Cited – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Cited – Kingston’s (Duchess) Case 1776
The judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties coming incidentaly in question in another court for a different purpose. The principle of . .
Cited – Lobo Machado v Portugal ECHR 20-Feb-1996
One of the characteristics of a fair trial under article 6 is that the proceedings should be ‘adversarial’. The applicant’s right, in an adversarial hearing, to see and reply to material before the court: ‘means in principle the opportunity for the . .
Cited – Bolton v Liverpool Corporation HL 1833
The defendant sought to inspect the plaintiff’s instructions to his counsel, though not of the advice which counsel gave.
Held: The application was refused. Lord Brougham said: ‘It seems plain, that the course of justice must stop if such a . .
Cited – Price Waterhouse v BCCI Holdings (Luxembourg) SA CA 1992
A claim for legal advice privilege was rejected for reports written by accountants both when the accountants were independent and when they reconstituted themselves as a committee of the client. However, legal advice privilege attaches to all . .
Cited – Carpmael v Powis 1846
The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a . .
Cited – Re Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
Cited – Herring v Clobery 1842
The court considered whether legal advice privilege should be confined to litigation: ‘But further, I think that restriction of the rule is not consistent with, and not founded on, any sound principle; for it may, and in a great variety of cases . .
Cited – Holmes v Baddeley HL 1844
Discussing professional legal privilege, Lord Lyndhurst said: ‘The principle upon which this rule is established is that communications between a party and his professional advisers, with a view to legal proceedings, should be unfettered; and they . .
Cited – Anderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .
Cited – Waugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .
Cited – Duke of Argyll v Duchess of Argyll HL 1962
The pursuer sought to protect the contents of her diary from publication using the law of confidence.
Held: Lord Reid said: ‘the effect, and indeed the purpose, of the law of confidentiality is to prevent the court from ascertaining the truth . .
Cited – Seabrook v British Transport Commission 1959
The practice which has developed to determine the bounds of privilege involves finding the proper point of balance between two opposing imperatives, making the maximum relevant material available to the court of trial and avoiding unfairness to . .
Cited – Hagart and Burn-Murdoch v Inland Revenue Commissioners HL 1929
The mere lending of money, outside the existence or contemplation of professional help, is outside the ordinary scope of a solicitor’s business . .
Cited – Pearse v Pearse 2-Jan-1846
Legal privilege was claimed for communications related to transactions concerning the client’s lands and unconnected with any existing or anticipated litigation.
Held: The work done was all part of one transaction of the nature in which . .
Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Cited – AM and S Europe Ltd v Commission of The European Communities ECJ 18-May-1982
The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially . .
Cited – Southwark and Vauxhall Water Company v Quick CA 1878
The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s . .
Cited – Bullivant v Attorney-General for Victoria PC 1900
Fraud or dishonesty must be distinctly alleged and as distinctly proved. It must be sufficiently particularised; and it is not sufficiently particularised if the facts pleaded are consistent with innocence.
‘for the perfect administration of . .
Cited – Parry-Jones v The Law Society CA 1969
The Society had, for regulatory purposes, exercised a power under the 1957 Act to call upon the plaintiff, a solicitor, to produce for inspection accounts and other information relating to the conduct of his clients’ affairs. He sought an injunction . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Cited – Minter v Priest CA 1929
An issue was whether conversations between a solicitor and his client relating to the business of obtaining a loan for the deposit on the purchase of real estate were privileged from disclosure.
Held: They were privileged. The were within to . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Middleton, Regina (on the Application of) v Coroner for the Western District of Somerset HL 11-Mar-2004
The deceased had committed suicide in prison. His family felt that the risk should have been known to the prison authorities, and that they had failed to guard against that risk. The coroner had requested an explanatory note from the jury.
Cited by:
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
Cited – Prudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.219353

Guidance for Wasted Costs Orders

Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an advocate has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill. Mistakes will inevitably be made, things done which the outcome shows to have been unwise. Advocacy is more an art than a science. It cannot be conducted according to formulae. Individuals differ in their style and approach. It is only when, with all allowances made, an advocate’s conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order. Threats of applications for wasted costs orders should not be used to intimidate opposing solicitors. He should ask three questions: Did he act improperly, unreasonably or negligently? Did that conduct cause unnecessary costs? Is it, in all the circumstances, just to make an order? In order to establish negligence it is necessary to show that the representative concerned acted in a way which no reasonably competent representative would act.
Sir Thomas Bingham MR said: ”Unreasonable’ also means what it has been understood to mean in this context for at least half a century . . ‘Unreasonable’ aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment but it is not unreasonable.’
[W]e are clear that ‘negligent’ should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence: ‘advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do;’ an error ‘such as no reasonably well-informed and competent member of that profession could have made: ‘. . We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended.’
Sir Thomas Bingham MR said: ‘It is, however, one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court. Whether instructed or not, a legal representative is not entitled to use litigious procedures for purposes for which they were not intended, as by issuing or pursuing proceedings for reasons unconnected with success in the litigation or pursuing a case known to be dishonest, nor is he entitled to evade rules intended to safeguard the interests of justice, as by knowingly failing to make full disclosure on ex parte application or knowingly conniving at incomplete disclosure of documents. It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.’
Sir Thomas Bingham discussed the difficulty where a client seeks to refuse to waive privilege in a complaint against his lawyer: ‘So the respondent lawyers may find themselves at a grave disadvantage in defending their conduct of proceedings, unable to reveal what advice and warnings they gave, what instructions they received . . Judges who are invited to make or contemplate making a wasted costs order must make full allowance for the inability of respondent lawyers to tell the whole story. Where there is room for doubt, the respondent lawyers are entitled to the benefit of it. It is again only when, with all allowances made, a lawyer’s conduct of proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order.’

Sir Thomas Bingham MR, Rose, Waite LJJ
Independent 04-Feb-1994, [1994] Ch 205, [1994] 3 All ER 848, [1994] EWCA Civ 40, [1994] 2 FLR 194, [1994] 3 WLR 462, [1994] Fam Law 560, [1994] EG 15, [1994] BCC 390, [1955-95] PNLR 636, [1997] Costs LR 268
Bailii
Supreme Court Act 1981 51(6), Courts and Legal Services Act 1990 62
England and Wales
Citing:
Cited – Edwards v Edwards 1958
. .
Cited – Currie and Co v The Law Society 1976
Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of equitable rules. May J said: ‘[T]he set-off takes precedence over the solicitor’s particular lien, . .
Cited – Filmlab Systems International Ltd and Another v Pennington and Others ChD 9-Jul-1993
In civil litigation an application for a wasted costs order should only save in exceptional circumstances, be made after the trial. The court mentioned several dangers if applications were made at an interlocutory stage, among them the risk that a . .
Cited – Holden and Co (A firm) v Crown Prosecution Service 1990
It is part of the deterrent of the wasted costs procedure that solicitors are named and the adverse publicity is therefore an important deterrent to impropriety. . .
Cited – Fozal v Gofur CA 9-Jul-1993
An order for wasted costs against counsel could only be allowed with respect to acts done after 1 October 1991, with the new rules. . .
Cited – Gupta v Comer CA 1991
The plaintiff applied for an Order that costs be paid personally by the defendant’s solicitors on the basis that the solicitors had incurred such costs unreasonably and had failed to conduct the proceedings with reasonable competence and expedition. . .
Cited – Re A Barrister (Wasted Costs Order); Re A (No 1 of 1991) CA 1992
The section provided that the Court could order a legal practitioner to pay ‘wasted costs’, which were defined as costs incurred by a party ‘as a result of any improper, unreasonable or negligent act or omission on the part of any representative’. . .
Cited – In re a Company (No 0012209 of 1991) ChD 1992
It is an abuse of the process of the court to make a statutory demand or present a winding-up petition based on a claim to which there is a triable defence. Where a statutory demand is made but disputed on reasonable grounds, the creditor may find . .
Cited – Myers v Rothfield CA 1938
The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such . .
Cited – Locke v Camberwell Health Authority CA 23-May-1991
The court discussed the relative duties of solicitor and counsel. Taylor LJ set out the principles that: 1) In general a solicitor, is entitled to rely upon the advice of counsel properly instructed;
2) For a solicitor, without special . .
Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Cited – Mauroux v Sociedade Comercial Abel Pereira da Fonseca SARL 1972
The jurisdiction to order a legal professional to pay costs is primarily compensatory. The jurisdiction should not be attracted merely because of the lawyer’s bona fide mistake or error of judgment. . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Rondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
Cited – Saif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Cited – Wilkinson v Wilkinson CA 1962
Absence of legal representative from a hearing of which he had been notified. Physical absence was considered as absence for the purpose of such a rule.
Ormerod LJ held that the provision in the Matrimonial Causes Act should be construed as . .
Cited – Symphony Group Plc v Hodgson CA 4-May-1993
Nine rules were set out for allowing a costs order against someone who is not a party to the action. Such orders should be exceptional. The normal rule is that witnesses in either civil or criminal proceedings enjoy immunity from any form of civil . .
Cited – Sinclair-Jones v Kay CA 1988
The court was asked whether the costs of certain hearings should be paid by the solicitor or his client, and has regard to the solicitor’s responsibilities for the hearings going off. . .
Cited – Orchard v South Eastern Electricity Board CA 1987
The threat of applications for a wasted costs order should not be used to intimidate, but if one side considers that the other to have behaved in an improper, unreasonable or negligent way and likely to cause a waste of costs, it is not . .
Cited – R and T Thew Ltd v Reeves (No 2) CA 2-Jan-1982
The remedy of an award of costs against a solicitor personally is only available to make good loss where the solicitor is guilty of inexcusable misconduct such as to merit reproof.
It is not always easy to separate the effect of a disciplinary . .

Cited by:
Cited – Livingstone and another v Frasso CA 9-Jul-1997
Solicitors appealed a wasted costs order. They appealed on the basis that the judge had not followed the appropriate procedure, which required a proper opportunity for the solicitors against an order is proposed, to show cause why the order should . .
Cited – Regina v Justices of Luton Family Proceedings Court; Her Honour Judge Pearce of Luton County Court; Director of Social Services of Bedfordshire County Council ex parte Abdul Rahman and Azra Bi Admn 16-Dec-1996
In the course of urgent children proceedings, counsel advised solicitors inappropriately to seek judicial review of a court decision. The application was persisted with despite warnings from the respondents that they intended to seek a wasted costs . .
Approved – Medcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
Cited – White v White (Deceased) CA 20-Jan-2003
An appeal was made against an order refusing an award of costs against solicitors for the opposing party.
Held: The judge’s order saying that an aplication should have been forewarned earlier was made within his discretion, and was . .
Cited – Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .
Cited – In Re Hickman and Rose (Solicitors) (Wasted Costs Order) (No 10 of 1999) CACD 19-Apr-2000
After a trial was aborted, the solicitors, acting on counsel’s advice made an application for bail under the rules applying to the custody time limits. An unreported case had already decided the point, namely that once the jury had ben sworn, the . .
Cited – Burrows v Vauxhall Motors Ltd; Mongiardi v IBBC Vehicles Ltd CA 19-Nov-1997
After acceptance of money paid into court in proceedings issued unnecessarily quickly, the taxing officer alone has the power to disallow costs.
Powers of the County Court to deal with costs unnecessarily incurred as the result of the premature . .
Mentioned – Sayers v Clarke Walker (A Firm) CA 26-Jun-2002
. .
Cited – Wagstaff v Colls and Another CA 2-Apr-2003
The action had been stayed by an order on agreed terms. The claimant sought a wasted costs order against the defendants’ solicitors on the ground that they had witheld certain facts during the litigation. The defendants argued that they should first . .
Cited – Regina v London Borough of Camden ex parte Margarita Martin Admn 25-Oct-1996
The court has no power to make a wasted costs order in favour of a party opposing an ex parte application. . .
Cited – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Zamar had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought. . .
Cited – Koo Golden East Mongolia (A Body Corporate) v Bank of Nova Scotia and others QBD 20-May-2008
Application for wasted costs order against solicitors. . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Cited – Neill v Crown Prosecution Service Admn 2-Dec-1996
Appeal against wasted costs order made against solicitor. He had information suggesting that an essential prosecution witness might not appear, but she did.
Held: The solicitor had acted correctly: ‘The function of committal is to see if there . .
Cited – Media Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
Cited – Stiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .
Cited – Casqueiro (In A Matter of Wasted Costs) v Barclays Bank Plc EAT 14-Jun-2012
casqueiroEAT2012
EAT PRACTICE AND PROCEDURE – Costs
Unlike for ‘ordinary costs’ under Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 rule 41(1)(c), there is no power to refer wasted costs ordered . .
Cited – Joseph Hill and Company, Solicitors, Re Wasted Costs Order Made Against CACD 21-May-2013
The solicitors appealed against a wasted costs order made by the Crown Court as to their actions in the successful defence. They had not disclosed alibi evidence on advice from counsel on being unable to obtain proofs of evidence, until the day . .
Cited – Reeves and Co, Solicitors, Regina v CACD 24-Mar-2011
The solicitors appealed against a wasted costs order. On the morning of the trial, they had produced further evidence leading to the collapse of the trial.
Held: The appeal succeeded. The solicitors had not been given notice of the . .
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Leading Case

Updated: 02 November 2021; Ref: scu.88782

Limitation on Making of Anonymity Orders

A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party to entitle a court to allow a solicitors firm anonymity in a challenge to a withdrawal of a Legal Aid Franchise. Greater publicity had already been created for the firm by their application. It was vital to protect the part played by the media in maintaining respect for the system of justice: ‘The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary.’ and
‘It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. In general, however, parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule.’
The firm of solicitors had been notified by the legal aid board of their intention to institute a criminal investigation of their practice. The firm sought a judicial review of the decision, and now appealed an order not to grant them anonymity.
Held: Any interference with the public nature of court proceedings is to be avoided unless justice requires it. It cannot be reasonable for the legal profession to seek preferential treatment over other litigants. This was not a situation in which the identity of the firm could be protected. The appeal was dismissed.

Lord Woolf of Barnes MR, Lord Justice Auld and Lord Justice Buxton
Times 15-Jun-1998, Gazette 01-Jul-1998, [1998] EWCA Civ 958, [1999] QB 966, [1998] 3 All ER 541, [1998] 3 WLR 925
Bailii
Administration of Justice Act 1960 12
England and Wales
Citing:
Leave granted – Regina v Legal Aid Board ex parte T, a Firm of Solicitors Admn 25-Jun-1997
Application for judicial review of decision of Legal Aid board – granted. . .
Appeal from – Regina v Legal Aid Board ex parte T, a Firm of Solicitors Admn 25-Jun-1997
The firm of solicitors making an application for judicial review of the decision of the Board to institute criminal proceedings against them sought anonymity, saying that procedure which might prove them innocent would nevertheless damage their . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Regina v Westminster City Council Ex Parte Castelli QBD 14-Aug-1995
An applicant, who was HIV positive, wished his identity to be concealed.
Held: Some publicity had already occurred A Contempt of Court anonymity order was not to be used to protect a litigant’s privacy. . .
Cited – Re A Barrister (Wasted Costs Order); Re A (No 1 of 1991) CA 1992
The section provided that the Court could order a legal practitioner to pay ‘wasted costs’, which were defined as costs incurred by a party ‘as a result of any improper, unreasonable or negligent act or omission on the part of any representative’. . .
Cited – Regina v Horsham Justices ex parte Farquharson CA 1982
The Court was asked whether the justices had had power under section 4(2) to impose reporting restrictions on committal proceedings pending the trial to which they related..
Held: They had. A premature publication in contravention of a . .
Cited – Regina v The Evesham Justices ex parte McDonagh 1988
There had been a proceeding before Magistrates Court for a minor traffic offence. The defendant was a member of Parliament. He sought not to have his address made public. Since his divorce from his wife he had been subjected to harassment. He had . .
Cited – Regina v The Dover Justices ex parte Dover District Council QBD 1991
Magistrates could not restrict and prevent reporting of elements of a court case where publicity might result in financial damage or damage to reputation or goodwill of a defendant. Such circumstances were not special ones to allow this. . .
Cited – Acton v Graham Pearce and Co 1997
The plaintiff had been convicted on criminal charges but then acquitted on Appeal. He complained that the defendant solicitors had conducted his defence at trial negligently, failing to take steps which reasonably competent solicitors would have . .
Cited – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Cited – Holden and Co (A firm) v Crown Prosecution Service 1990
It is part of the deterrent of the wasted costs procedure that solicitors are named and the adverse publicity is therefore an important deterrent to impropriety. . .
Cited – Ex Parte P CA 31-Mar-1998
Where statutory alternative of redress available through ministers discretion, that should be used rather than judicial review: ‘When both sides agreed that information should be kept from the public that was when the court had to be most vigilant.’ . .

Cited by:
Full appeal – Regina v Legal Aid Board ex parte T, a Firm of Solicitors Admn 25-Jun-1997
Application for judicial review of decision of Legal Aid board – granted. . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
Cited – LM, Re (Reporting Restrictions; Coroner’s Inquest) FD 1-Aug-2007
A child had died. In earlier civil proceedings, the court had laid responsibility with the mother. Restrictions had been placed on the information which would effectively prevent the coroner conducting his inquest. The coroner sought a lifting of . .
Cited – Times Newspapers Ltd v Secretary of State for the Home Department and AY Admn 17-Oct-2008
The newspaper applied to challenge the protection of the identity of the defendant subject to a control order under the 2005 Act. It said that there was no basis for the making of the order without first considering the Human Rights need for open . .
Cited – JIH v News Group Newspapers Ltd QBD 5-Nov-2010
The court was asked as to the circumstances under which the identity of a claimant should be protected in an action where he sought to restrain the publication of private information about him.
Held: Tugendhat J accepted the proposition . .
Cited – A, Regina (on The Application of) v Lowestoft Magistrates’ Court Admn 26-Mar-2013
A had pleaded guilty to a charge of being drunk in a public place, while having the charge of a child under the age of 7 years, contrary to section 2(1) of the Licensing Act 1902. The child in question was A’s daughter, to whom I shall refer as B. B . .
Cited – ABC Ltd v Y ChD 6-Dec-2010
There had been proceedings as to the misuse of confidential information. X, a non-party, now sought disclosure of papers used in that case. The case had been settled by means of a Tomlin Schedule, and that, subject to further order, non-parties . .
Cited – MX v Dartford and Gravesham NHS Trust and Others CA 17-Feb-2015
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should . .
Cited – H v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
Cited – Sarker, Regina v CACD 13-Jun-2018
The defendant was to face trial under the 2006 Act. He applied for an order under section 4(2) of the 1981 Act postponing the reporting of the proceedings on the grounds that knowledge by the jury of the inquiry and police investigation would be . .
Cited – XXX v Camden London Borough Council CA 11-Nov-2020
Anonymity in Court Proceedings – No two stage test
XXX appealed against the refusal to make orders anonymising her name and redacting certain details from published judgments. The appeal raised a point about the proper approach to applications for anonymisation under CPR 39.2. She brought . .
Cited – Imam, Regina (on The Application of) v The London Borough of Croydon (Anonymity request) Admn 26-Mar-2021
Anonymity Not Necessary under CPR 3.92.
Judgment on the Claimant’s application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. She said that publication of her . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.144437

The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the course of an investigation of the claimant’s professional conduct.
Held: In fact the solicitors had received the emails whilst acting for the claimant’s employer, and not for the claimant in person. However, the criteria for claiming joint legal advice privilege were: ‘an individual claiming joint privilege with others in a communication with a lawyer, when there is no joint retainer, will need to establish the following facts by evidence:
i) That he communicated with the lawyer for the purpose of seeking advice in an individual capacity;
ii) That he made clear to the lawyer that he was seeking legal advice in an individual capacity, rather than only as a representative of a corporate body;
iii) That those with whom the joint privilege was claimed knew or ought to have appreciated the legal position;
iv) That the lawyer knew or ought to have appreciated that he was communicating with the individual in that individual capacity.
v) That the communication with the lawyer was confidential.’ These conditions were met.

Burnett J
[2011] EWHC 2583 (Admin)
Bailii
England and Wales
Citing:
Cited – Calley v Richards CA 8-Jul-1854
Communications between a person and his legal adviser, who had been a solicitor, but at the time of the communications had, without his knowledge ceased to practise, are privileged. The communication had reference to the validity of a will, and . .
Cited – Wheeler v Le Marchant CA 1881
Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – Rochefoucald v Boustead 1896
Two parties were engaged in a joint venture. The first invited the second to consult his solicitor but, in proceedings against both parties, waived any privilege in respect of what took place.
Held: The second party remained entitled to insist . .
Cited – CIA Barca de Panama SA v George Wimpey and Co Ltd CA 1980
Claim to Legal Professional Privilege Lost
Barca and Wimpey had been 50/50 joint venturers through the medium of a company called DLW which had provided services to oil companies in the Middle East, including the Aramco Group. Wimpey agreed to buy out Barca’s interest in DLW on terms which . .
Cited – In re Konigsberg (A Bankrupt) 1989
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
Cited – Pioneer Concrete (NSW) Pty Ltd v Webb 1995
(New South Wales) The defendant, Mr Webb claimed joint interest privilege in advice given pursuant to a retainer with C H Webb (the company). His argument had three bases. First, that the advice was given not only to the company as client, but also . .
Cited – Farrow Mortgage Services Pty Ltd (in Liq) v Webb and others 5-Jul-1996
Austlii (Court of Appeal of New South Wales) COMPANY LAW – s556 (1) Companies (NSW) Code; s592 (1) Corporations Law; liability of directors for debt of company – legal professional privilege – distinction between . .
Cited – Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
Cited – Re Doran Constructions Pty Ltd (in liq) 27-Mar-2002
Austlii (Supreme Court of New South Wales) CORPORATIONS – winding up – liquidator’s examination – circumstances in which liquidator entitled to ask questions relating to legal advice given to company in . .
Cited – Gourand v Edison Gower Bell Telephone Co of Europe Ltd ChD 1888
Shareholders in the defendant company challenged its claim to legal privilege. They argued that when the directors obtained the advice in question, they did so on behalf of the company as a whole, and that they could not, therefore, assert privilege . .

Cited by:
See Also – Ford v Financial Services Authority and Another Admn 18-Apr-2012
. .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 31 October 2021; Ref: scu.445379

The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be settled without litigation. The defendants agreed at the meeting to make enquiries to see if they could obtain insurance cover against possible risk of damage to the house so that litigation could be avoided. After the interview the defendants obtained a report from another surveyor for the purpose of attempting to obtain insurance cover. No settlement was reached and the action commenced. The defendants disclosed the existence of the report in their affidavit of documents but claimed privilege from production on the ground that it was made in pursuance of a without prejudice discussion between the plaintiffs’ solicitor and the defendants’. The master, and the judge had upheld the defendant’s claim to privilege.
Held: The appeal failed.
Romer LJ said: ‘It seems to me that it would be monstrous to allow the plaintiff to make use – as he certainly would make use – for his own purposes as against the defendants of a document which is entitled to the protection of ‘without prejudice’ status.’
Denning LJ said: ‘after referring to Whiffen v. Hartwright ‘It is said, however, that, apart from legal professional privilege, there is a separate head of privilege on the ground that the documents came into existence on the understanding that they were not to be used to the prejudice of either party. ‘Without prejudice’ does not appear as a head of privilege in the White Book; but in Bray on Discovery at p. 308 it is stated: ‘The right to discovery may under very special circumstances by lost by contract as where correspondence passed between the parties’ solicitors with a view to an amicable arrangement of the question at issue in the suit on a stipulation that it should not be referred to or used to the defendant’s prejudice in case of a failure to come to an arrangement.’
That proposition is founded on Whiffen v. Hartwright (1848) 11 Beav. 111, 112, where Lord Langdale H.R. refused to order the production of letters which passed ‘without prejudice,’ observing that he ‘did not see how the plaintiff could get over this express agreement, though he by no means agreed, that the right of discovery was limited to the use which could be made of it in evidence.’ The Master of the Rolls there affirms the undoubted proposition that production can be ordered of documents even though they may not be admissible in evidence. Nevertheless, if documents come into being under an express, or, I would add, a tacit, agreement that they should not be used to the prejudice of either party, an order for production will not be made. This case seems to me to fall within that principle. This report was clearly made as a result of a ‘without prejudice’ interview and it was made solely for the purposes of the ‘without prejudice’ negotiations. The solicitor for the plaintiff himself says in his affidavit that at the time of the interview it was contemplated that steps such as these should be undertaken. I find myself, therefore, in agreement with the decision of Master Burnand and the judge that this is not a case where production should be ordered.’
Denning LJ, Romer LJ
[1954] 1 WLR 271, [1954] 1 All ER 247
England and Wales
Citing:
Cited – Whiffen v Hartwright 15-Apr-1848
The court refused to order the production of letters which had passed ‘without prejudice’. Lord Langdale MR observed that he ‘did not see how the plaintiff could get over this express agreement, though he did not agree, that the right of discovery . .

Cited by:
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.253695