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,  Ch 205,  3 All ER 848,  EWCA Civ 40,  2 FLR 194,  3 WLR 462,  Fam Law 560,  EG 15,  BCC 390, [1955-95] PNLR 636,  Costs LR 268
Supreme Court Act 1981 51(6), Courts and Legal Services Act 1990 62
England and Wales
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 – 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
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
Updated: 02 November 2021; Ref: scu.88782