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 make a wasted costs order when the impugned conduct has caused a waste of costs and only to the extent of such costs wasted. A causal link is essential. There is both a merits and a proportionality test. There were several doubts about the methods chosen by the original claimants and their solicitors but a court on a wasted costs should be cautious so as to avoid satellite litigation. Stage 1 wasted costs orders were made, but limited to issues as to revenue sharing and the service of the notices of discontinuance, later found to havd been an abuse of process. Furthermore, there was a good arguable case that ACS:Law / Mr Crossley woud be liable for the costs of this case and he was added as a party for that purpose.
Birss QC J
[2011] EWPCC 10, [2011] FSR 29
Bailii
Superior Courts Act 1981 51(6), Civil Procedure Rules 48 53.4
England and Wales
Citing:
Principal judgment – Media CAT Ltd v Adams and Others PCC 8-Feb-2011
The claimants had begun copyright infringement proceedings claiming that they represented the rights holders in pornographic films said to have been file shared by the defendants. Faced with insuperable difficulties, they purported to withdraw the . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Morton-Norwich Products Inc v Intercen Ltd 1976
Graham J addressed the question of whether a Dutch defendant who consigned furazolidone by air from Holland on terms cif Gatwick but denied liability for patent infringement was liable in English patent proceedings.
Held: They were liable as . .
See Also – Media Cat Ltd v Billington PCC 17-Dec-2010
. .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Ridehalgh 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 . .
Cited – 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 – Daly v Hubner ChD 9-Jul-2001
Etherton J considered a wasted costs order application.
Held: The case did not satisfy the merits test in paragraph 53.6(1)(a) CPD. Etherton J considered the proportionality test in paragraph 53.6(1)(b) also. In that case the costs in issue . .
Cited – Regent Leisuretime Ltd and others v Skerrett and Another CA 4-Jul-2006
The court set aside a first stage wasted costs order made by the judge below against the solicitors Reynolds Porter Chamberlain. The judge had been given no indication of the costs claimed and did not have material on which he could form a view as . .
See Also – Media CAT Ltd v A PCC 1-Dec-2010
The claimant sought to make use of the Request for Judgment procedure.
Held: The procedure was not appropriate in this case. There were sufficient disturbing circumstances about the case to warrant a further on notice hearing. . .
Cited – Wallersteiner v Moir (No 2) CA 1975
The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
Cited – Regina (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) CA 3-Jul-2002
A firm of accountants had agreed to provide their services as experts in a case on the basis that they would be paid by taking part of any damages awarded. The respondent claimed that such an agreement was champertous and unlawful.
Held: The . .
Cited – Carborundum Abrasives Ltd v Bank of New Zealand (No 2) 1992
(New Zealand High Court) The court considered the position of company directors in litigation by their companies: ‘The directors of a company may frequently be in a position different from other non-parties with a direct financial interest in . .
Cited – Jackson and others v Thakrar and others (No.4) TCC 22-Mar-2007
Judge Coulson reviewed the authorities on causation in relation to third party costs orders and said: ‘Plainly, in a Section 51 application, what matters is whether the funding provided by the non-party caused the applicant to incur costs which he . .
Cited – Arklow Investments Ltd v Maclean 19-May-2000
(High Court of New Zealand) The court considered the potential personal responsibility of a directors for costs incurred by the company in litigation: ‘Where a person is a major shareholder and dominant director in a company which brings . .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Legal Professions, Costs
Updated: 01 November 2021; Ref: scu.432876
