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 Council Code of Practice.
Held: A barrister must not draft a pleading containing an allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which, as it stands, establishes a prima facie case of fraud. There was no bar to a party asking for a wasted costs order against opposing counsel. There was no bar to an action in respect of acts outside the strict scope of courtroom advocacy. Nevertheless, fairness must be allowed. There was a risk here of the barristers being unable to defend themselves without being able to produce material protected by their clients’ legal professional privilege. The clients did not release that privilege, and so a court order could not safely be made.
Lord Bingham said: ‘ Paragraph 606(c) (of the Bar Code of Conduct) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which the judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would however agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it.’
Lord Steyn said: ‘ This particular professional duty sometimes poses difficult problems for practitioners. Making allegations of dishonesty without adequate grounds for doing so may be improper conduct. Not making allegation of dishonesty where it is proper to make such allegations may amount to dereliction of duty. The barrister must promote and protect fearlessly and by all proper and lawful means his lay clients interests: paragraph 203 of the Code of Conduct. Often the decision will depend on circumstantial evidence. It may sometimes be finely balanced. What the decision should be may be a difficult matter of judgment on which reasonable minds may differ.’
Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry
Times 28-Jun-2002, Gazette 08-Aug-2002, [2002] UKHL 27, [2002] 3 All ER 731, [2003] 1 AC 120, [2002] NPC 89, [2002] PNLR 43, [2002] 3 WLR 172, [2002] CP Rep 70, [2002] CPLR 647, [2002] 3 Costs LR 428
House of Lords, Bailii
Supreme Court 1981 51(6)(7) 51(6)(13), Courts and Legal Services Act 1990 4, Bar Code of Conduct 606
England and Wales
ApprovedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
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 . .
Appeal fromMedcalf v Mardell and Others CA 24-Nov-2000
Counsel who wished to insert an allegation of fraudulent activity, or similar, into an application to amend a notice of appeal, must be sure not only that they have the clear and direct instructions of the clients to do this, but also that they . .
CitedMyers 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 . .
See AlsoMedcalf v Mardell and others CA 2-Mar-2000
. .
See AlsoRoger Medcalf v Terence Mardell, Michael Kemp, British Broadcasting Corporation Terry Mardell Organisation Ltd CA 2-Nov-1998
Application for stay of execution pending appeal. . .

Cited by:
CitedFitzhugh 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 . .
CitedGleaner Company Ltd and Another v Abrahams PC 14-Jul-2003
Punitive Defamation Damages Order Sustained
(Jamaica) The appellants challenged a substantial award of damages for defamation. They had wrongfully accused a government minister of corruption. There was evidence of substantial financial loss. ‘For nearly sixteen years the defendants, with all . .
CitedHussain and Another v Sarkar and Another CA 29-Jan-2010
The claimant sought damages saying that in a traffic accident, the first defendant driver had driven into the rear of their car. The second defendant asked for permission to amend its peading to allege fraud, that the accident had been staged, but . .
CitedAbbar and Another v Saudi Economic and Development Company (Sedco) Real Estate Ltd and Others ChD 5-Aug-2010
The defendant sought a strike out of the claim in fraud, saying it was an abuse of process, saying that the facts as pleaded were consistent with honest dealing. The claimants said they had been induced to purchase shares.
Held: The request . .
CitedJones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
CitedMedia 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 . .

These lists may be incomplete.
Updated: 21 January 2021; Ref: scu.174122