Wasted Costs Orders

Introduction - paras 1 to 3
Jurisdiction - paras 4 to 7
Principles - para 8(1)-(15)
Procedure - paras 9 to 11(1)-(20)
Other Points - paras 12 to 19

Introduction

1. The Guidance Note does not seek to be comprehensive, nor is it a substitute for the close individual analysis that each request for advice, assistance or representation will require.

2. The Guidance Note seeks to deal with wasted costs orders in both the civil and the criminal fields1.

Jurisdiction

3. There are three possible heads of jurisdiction under which a legal representative may be held liable for costs2. These are:

(1) the Court's jurisdiction under statute to make a wasted costs order;

(2) the Court's inherent jurisdiction3;

(3) the Court's general jurisdiction as to costs under section 51(1) and (3) of the Supreme Court Act4.

This Guidance Note is concerned only with the first head of jurisdiction, the wasted costs jurisdiction.

4. In civil proceedings the wasted costs jurisdiction in respect of barristers is found in section 51(6) and (7) of the Supreme Court Act 19815. In the CPR, wasted costs orders are dealt with in terms by CPR 48.7 (and see also Section 53 of the Practice Direction about Costs supplementing CPR Parts 43 to 48 ("the Costs PD")). However it should be noted that parts of CPR 44.14 (and Section 18 of the Costs PD) appear also to deal with some aspects of the same subject, although not in identical terms or to the same level of detail as CPR 48.76.

5. The jurisdiction enables the court to make a wasted costs order against the legal representative of any opposing party. A barrister may be liable for a wasted costs order in relation to conduct immediately relevant to the exercise of a right of audience although not involving advocacy7.

6. In criminal proceedings the wasted costs jurisdiction in respect of barristers is found in section 19A of the Prosecution of Offences Act 19858. The applicable regulations are the Costs in Criminal Cases (General) Regulations 1986 (SI 1986 No 1335), and in particular Part IIA of those regulations. The applicable practice direction is the Practice Direction (Costs in Criminal Proceedings)9, and in particular Part VIII of that practice direction.

7. There is clear judicial opinion that it is undesirable that there be "any divergence in the practice of the criminal and civil courts in this field", whilst recognising that "the conduct of criminal cases will often raise different questions and depend on different circumstances" to that of civil cases10.

Principles

8. The main principles may be stated as follows:

(1) The mischief against which the wasted costs jurisdiction is aimed is "the causing of loss and expense to litigants by the unjustifiable conduct of litigation by their or the other side's lawyers"11 .

(2) The jurisdiction to make a wasted costs order exists only where there has been an "improper, unreasonable or negligent act or omission on the part of" the barrister exercising a right of audience or an employee of that barrister12 .

(3) The jurisdiction to make a wasted costs order "must be exercised with care and only in a clear case"13 .

(4) The advocate's conduct of court proceedings must have been, "with all allowances made", "quite plainly unjustifiable" before "it can be appropriate to make a wasted costs order against him"14 .

(5) The words "improper, unreasonable or negligent" may overlap; sharp differentiation between them is not "useful or necessary or intended"15. The conduct must involve breach of the advocate’s duty to the court; mere negligence without such breach is not in itself sufficient16.

(6) "Improper" conduct is conduct "which would be regarded as improper according to the consensus of professional (including judicial) opinion"17.

(7) "Unreasonable" conduct is conduct which does not "permit of a reasonable explanation"18 .

(8) "Negligent" conduct19 denotes "failure to act with the competence reasonably to be expected of ordinary members of the profession"20.

(9) A barrister "is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who pursues a claim or a defence which is plainly doomed to fail"21.

(10) "It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved [; t]hey are there to present the case ... not ... to judge it"22.

(11) However a barrister may not "lend his assistance to proceedings which are an abuse of the process of the court"23. This may include on an appeal making complaints of unfairness of the trial process which were shown to be quite unsustainable and which should never have been made24.

(12) Legal representatives acting under the legal aid scheme are not to be subjected to any unusual personal risk by reason of their acting for an assisted person25. This principle applies to the wasted costs regime as elsewhere. The public interest demands that the same principle, at least, apply where legal representatives are properly acting pro bono26. And the existence of a conditional fee agreement "should make a legal advisers' position as a matter of law no worse, so far as being ordered to pay costs is concerned, than it would be if there was no CFA ... unless, of course, the CFA is outside the statutory protection."27

(13) The use during the course of a case by one side of claims for wasted costs as a means of browbeating or threatening the other side can have serious consequences and is "extreme[ly] undesirab[le]"28. However it is not objectionable for one side to alert the other to a view held by the former that the conduct of the latter is improper, unreasonable or negligent29. There is a "distinction between unacceptable intimidation and acceptable notice"30. It is important to have in mind that a wasted costs application exposes a barrister to a risk of conflict of interest between his client’s and his own interests. It is therefore important that a wasted costs application must not raise a suspicion of itself being abusive31. An intimation of a wasted costs order with the primary intention of creating a conflict of interest between client and legal advisers is likely to be regarded as improper, as is a groundless threat of a wasted costs application.

(14) The judge must make full allowance for the difficulties facing an advocate in court32.

(15) Demonstration of a causal link between the improper, unreasonable or negligent conduct complained of and a waste of costs "is essential" to the exercise of the jurisdiction33 .

Procedure

9. As indicated above there is clear judicial opinion that it is undesirable that there be "any divergence in the practice of the criminal and civil courts in this field". However there remain differences in the description of the procedure required in criminal and civil courts.

10. It is therefore still important to consult separately the description of procedure for each type of court, i.e.:

(1) in civil proceedings: CPR 48.7 and 44.14 and Section 53 and 18 of the Costs PD34;

(2) in criminal proceedings: Part IIA of the Costs in Criminal Cases (General) Regulations 1986, Part VIII of the Practice Direction (Costs in Criminal Proceedings) and Re A Barrister (Wasted Costs Order) (No 1 of 1991)35.

These separate descriptions of procedure for each type of court, are not set out in this Guidance Note.

11. However the main points that are likely to be of general application, in both civil and criminal courts, may be summarised as follows36:

(1) The "overriding requirements" for the procedure to be followed are "that any procedure must be fair and that it must be as simple and summary as fairness permits"37.

(2) Whilst it is "impossible to lay down rules of universal application", in "the ordinary way" and "speaking generally" applications for wasted costs are best left until after the end of trial38, but should take place very soon after judgment39.

(3) Hearings "should be measured in hours, and not in days or weeks"40. The application should, wherever practicable, be heard by the Judge who heard the substantive proceedings41.

(4) Save "in the most obvious case" courts "should be slow" to use their own power to initiate the inquiry whether a wasted costs order should be made42. Cases involving failure to appear, lateness, negligence leading to an otherwise avoidable adjournment, gross repetition or extreme slowness are examples of cases that may be straightforward, with the result that the court might take the initiative43.

(5) An application for a wasted costs order may be inappropriate in some circumstances. These may include where a clear picture could not be readily drawn indicating that a lawyer's conduct had fallen within that proscribed by the legislation44, as where it would result in complex proceedings involving detailed investigations of fact45, or in some cases where a lawyer was alleged to be in breach of his professional duty to his client46.

(6) The Court will normally first consider whether to proceed further with the matter and invite the barrister to "show cause". Even at this first stage there is a discretion to be exercised judicially, and it will be relevant to take into account the costs of the enquiries compared with the cost claimed47.

(7) The court "must give [the respondent barrister] a reasonable opportunity to attend a hearing to give reasons why it should not make" a wasted costs order48 49.

(8) The respondent barrister "should be very clearly told what he is said to have done wrong and what is claimed"; however, "elaborate pleadings should in general be avoided"50.

(9) It may be appropriate for the barrister's client, other parties, or the prosecution to be present at the wasted costs proceedings51.

(10) "Courts should apply a three-stage test when a wasted costs order is contemplated"52. The three stages are these53:

(1) Has the barrister of whom complaint is made acted improperly, unreasonable or negligently?

(2) If so, did such conduct cause [the applicant] to incur unnecessary costs?

(3) If so, is it in all the circumstances just to order the barrister to compensate [the applicant] for the whole or any part of the relevant costs?

(11) "No formal process of [disclosure of documents] will be appropriate", and it is extremely unlikely that the applicant should ever be entitled to interrogate the respondent barrister or vice versa54.

(12) Before making a wasted costs order the court may make further inquiry. In criminal cases the Court may require the appropriate officer of the Court to make inquiries and inform the Court as to the likely amount of costs incurred55. In civil cases it may direct a costs judge or a district judge "to inquire into the matter and report to the court"56.

(13) Even if the answer to the first two of the three questions is in the affirmative the court is left with a further discretion and "it is not bound to make an order, but in that situation it would of course have to give sustainable reasons for exercising its discretion against making an order"57.

(14) If the answer to each of the three questions is in the affirmative, the amount of the costs must also be specified58.

(15) The order may require the barrister to pay a specified sum in respect of costs to another party, or that costs in a specified sum be disallowed59.

(16) If the application for a wasted costs order is made by an aggrieved party rather than initiated by the court, the costs of the application "will then, in the ordinary way, follow the event"60.

(17) It is inappropriate for the Court to propose any deal or settlement, such as that the barrister might forgo his fees61.

(18) If the application for a wasted costs order is made by an aggrieved party rather than initiated by the court and a settlement is reached in relation to an application for a wasted costs order the Court can be provided with a short, succinct written statement giving information as to matters relevant to the reputations of the lawyers which would not otherwise be brought to the Court's attention62. This can then be transmitted to the members of the judiciary who had previously been involved in the case63.

(19) On any appeal from a wasted costs order, the Courts have stressed that it is important that appellants use their best endeavours to obtain transcripts of what took place before the court making the wasted costs order64.

(20) It is only in a very rare case that the Court of Appeal will interfere with a decision of the Judge refusing to make a wasted costs order65; and it will be rarer still66 that the Court of Appeal will interfere with a decision of the Judge refusing to allow the case to proceed from the "first stage" to the "second stage"67.

Other Points

Legal Professional Privilege

12. The Courts have recognised that legal professional privilege may present both difficulty and disadvantage in the context of the "wasted costs" jurisdiction. In particular, where party A is an applicant for a wasted costs order against party B's lawyers, if party B declines to waive privilege in relevant documents where the privilege is party B's, party B's 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"68. Thus where a wasted costs order was sought against a practitioner precluded by legal professional privilege from giving his full answer to the application, the court should not make an order unless, proceeding with extreme care, it was satisfied that there was nothing the practitioner could say, if unconstrained to resist the order and that it was in all the circumstances fair to make the order69.

13. Before the CPR70, the position was (in summary) as follows:

(1) Where party A applied for a wasted costs order against party B's lawyers, if party A declined to waive privilege in relevant documents where the privilege was party A's privilege, the Court was able to deal with the matter by drawing adverse inferences against party A's application.

(2) Where party A applied for a wasted costs order against party B's lawyers, if party B declined to waive privilege in relevant documents where the privilege was party B's, in most cases the Court is only able to deal with the matter by making full allowance for the resultant inability of party B's lawyers to tell the whole story. "Where there is room for doubt, the respondent lawyers are entitled to the benefit of it."71

(3) These approaches to the difficulty and disadvantage are perhaps less suitable where the jurisdiction is initiated by the Court itself. For example, party A may be more ready to decline to waive privilege yet there is less place for the drawing of "adverse inferences". That said, "save in the most obvious case, courts should ... be slow to initiate the inquiry"72.

14. In civil cases, CPR 48.7(3) was then introduced, in these terms:

"For the purposes of ... rule [48.7, dealing with wasted costs orders], the court may direct that privileged documents are to be disclosed to the court and, if the court so directs, to the other party to the application for an order".

15. CPR 48.7(3) was held (at first instance, in a reserved judgment of Toulson J73) to be ultra vires. Further, by reference to the European Convention on Human Rights the Judge would in any event have refused an application for disclosure of privileged documents as a matter of discretion.

16. Following this decision CPR 48.7(3) was revoked. The present position on the authorities is therefore that summarised at Paragraph 13 above, for both civil and criminal cases. The issues considered by Toulson J are however very difficult ones, and even though CPR 48.7(3) has been revoked there may remain the possibility of further appellate consideration of the issues that arise where privilege exists.

Insurance

17. Bar Advisory Panel members may regard it as appropriate to check that the Bar Mutual Indemnity Fund, and top-up insurers, have been notified by the barrister advised to the extent that his or her obligations to those organisations require.

Less well known sources

18. In addition to the standard series of Law Reports and textbooks, the following specialist textbooks and law report series may be of assistance:

Hurst "Civil Costs" (Sweet & Maxwell; 2000)

Cook on Costs (Butterworths; 1998)

Rogers & Bacon "Costs Law Reports" (CLT Professional Publishing; 1997-)

Civil Practice Law Reports (CLT Professional Publishing; 1999-)

Professional Negligence and Liability Reports (Sweet & Maxwell; 1955-)

Lloyd's Law Reports: Professional Negligence (LLP; 1999-).

19. Practitioners should feel free to consult the Professional Practice Committee in cases where their role presents particular difficulty. The Executive Secretary to the Professional Practice Committee is Bhavna Patel.

1 It replaces an earlier guidance note prepared by Alison Levitt in May 1992 and updates the note prepared as at 1 October 2000 by Robin Knowles QC.
2 See Tolstoy-Miloslavsky v Aldington [1996] 1 WLR 736.
3 In Hodgson & Others v Imperial Tobacco Ltd & Gallaher [1998] 1 Costs LR 14 at 22 the Court of Appeal left open the question whether today the Courts would take the view that the inherent jurisdiction is limited to orders against solicitors rather than barristers too. In Medcalf v Mardell 2003 AC 120 the House of Lords held that the jurisdiction applied to a “legal or other representative”, meaning any person exercising a right to conduct litigation on the parties behalf. Materially for present purposes however, the Court accepted the submissions (of Mr Dan Brennan QC, as he then was) that (a) the inherent jurisdiction must be regarded as having been supplanted in circumstances falling within the statutory wasted costs jurisdiction, and (b) that the inherent jurisdiction should not be exercised until after a consideration whether an order should be made under the wasted costs jurisdiction.
4 This is not a jurisdiction which can arise where a legal representative is acting only in that capacity in the context of legal proceedings: see Tolstoy and Hodgson.
5 By section 51(1) the jurisdiction concerns proceedings in the civil division of the Court of Appeal, the High Court and any County Court. By section 51(4), "proceedings" includes the administration of trusts and estates.
6 Note the approach to CPR 44.14 in In re H (a Minor) (Court bundles: Disallowance of fees) The Times 6 June 2000.
7 Brown v Bennett 2002 2 All ER 273, approved in Medcalf v Mardell 2003 AC 120 HL; solicitors who had failed to issue proceedings were not within the statute for this purpose: Byrne v South Sefton Health Authority 2001 EWCA Civ 1904
8 By section 19A the jurisdiction concerns proceedings in the Magistrates Courts, the Crown Court and the Court of Appeal (Criminal Division).
9 93 Cr.App.R. 89.
10 Ridehalgh v Horsefield [1994] Ch 205 at 239G-H.
11 Ridehalgh v Horsefield at 231E.
12 Supreme Court Act 1981 section 51(7) and (13); Prosecution of Offences Act 1985 section 19A(3). For the position in relation to a barrister's clerk see R v Rodney (Wasted Costs Order) [1997] 1 Archbold News 2.
13 Tolstoy at 747H. See also Wall v Lefever The Times 1 August 1997; [1998] 1 FCR 605 and Fletamentos Maritimos SA v Effjohn International BV Unreported (CA) 10 December 1997.
14 Ridehalgh v Horsefield at 236G-H, and see also Re Beynon (wasted Costs Order) [1998] 8 Archbold News 1.
15 Ridehalgh v Horsefield at 233E.
16 Persaud (Luke) v Persaud (Mohan) 2003 EWCA Civ 394, Charles v Gillian Radford & Co 2003 EWHC (Ch) 5.11.03
17 Ridehalgh v Horsefield at 232E. In particular, "improper" conduct includes:
(1) conduct "which would ordinarily be held to justify disbarment, ... suspension from practice or other serious professional penalty": Ridehalgh v Horsefield at 232D-E;
(2) "any significant breach of a substantial duty imposed by a relevant code of professional conduct": Ridehalgh v Horsefield at 232D-E;
(3) conduct that "can be fairly stigmatised as [improper] whether or not it violates the letter of a professional code": Ridehalgh v Horsefield at 232D-E.
18 Ridehalgh v Horsefield at 232F. In particular:
(1) "unreasonable" conduct does not include conduct that "may be regarded as optimistic and as reflecting on a barrister's judgment" but which nonetheless permits of a reasonable explanation: Ridehalgh v Horsefield at 232E-F, and as to error of judgment see for example Re A Solicitor (Wasted Costs Order) [1993] 2 FLR 959;
(2) 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": Ridehalgh v Horsefield at 232E-F;
(3) "unreasonable" "aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case" (even where this is "the product of excessive zeal rather than improper motive"): Ridehalgh v Horsefield at 232E-F.
19 See (5) above for cases where mere negligence is insufficient
20 Ridehalgh v Horsefield at 233C. In particular:
(1) an untechnical approach is to be adopted to the meaning of the word "negligent";
(2) the word is not a term of art, and there is no requirement of an actionable breach of a legal representative's duty to his or her client;
(3) however it must be proved that there has or have been "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 the profession could have made": Ridehalgh v Horsefield at 233 C-D, citing and applying Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 218 and 220, and as applied by the CA in In re a Barrister (Wasted costs order) (No 9 of 1999) The Times 18 April 2000.
A failure to reconsider the basis on which an application was being presented to the Court was held to be a negligent omission in D. Walter & Co Ltd v Neville Eckley & Co (a Firm) [1997] BCC 331. In cases of failure to comply with a rule, practice direction or court order see In re a Barrister (Wasted costs order) (No 9 of 1999) and In re H (a Minor) (Court bundles: disallowance of fees), and note also CPR 44.14(1)(a), as amended. Where the costs stem from the fact that a barrister was not aware of earlier unreported authority, consider In re Hickman & Rose (Solicitors) (Wasted costs order) (No 10 of 1999) The Times 3 May 2000. Where the barrister's advice to the Legal Services Commission in a legally aided case is called into question, consider Fryer v Royal Institution of Chartered Surveyors The Times 16 May 2000.
21 Ridehalgh v Horsefield at 233F-G, but see also proposition (11) below, and note the position in In re A Company [1996] 1 WLR 491.
22 Ridehalgh v Horsefield at 234C-D (and Samuel Johnson!).
23 Ridehalgh v Horsefield at 234D-F. The examples given include the use of litigious procedures for purposes for which they were not intended. Consider also Wasted Costs Order (No. 5 of 1997) The Times September 7 1999 and In re A Company [1996] 1 WLR 491.
24 R v Naylor The Times, February 8 1995. Where there is "playing for time" consider Woolwich Building Society v Finberg [1998] PNLR 216. Where there is a failure to make disclosure of a material fact consider Lowline (PSV) Ltd v Direct Aviation Ltd (unreported) 15 April 1999 (Rix J.). In judicial review proceedings note R v Secretary of State for the Home Department, ex parte Abbassi The Times 6 April 1992 and R v Horsham District Council, ex p Newman [1995] 1 WLR 681.
25 Ridehalgh v Horsefield at 234G - 235A and Symphony Group plc v Hodgson [1994] QB 179 at 194B-D. Note also that where the wasted costs would effectively be recovered by the legal aid fund, the consent of the Legal Aid Board/ Legal Services Commission should be obtained before proceedings for a wasted costs order are embarked upon: see Tate v Hart The Independent 8 March 1999. For consideration of the relevance of the General Council of the Bar's legal aid guidelines in the exercise of the wasted costs jurisdiction, see Fryer v Royal Institution of Chartered Surveyors.
26 And see Tolstoy at 746B-D, 747E and 751B. In the event of any possibility of any application for wasted costs being made against a barrister acting pro bono, Bar Advisory Panel members are asked, wherever professionally possible, to ensure that rapid notification of this possibility is given to the Bar Pro Bono Unit (either to the Unit's office, or to the undersigned) and to the Bar Council. This will give the profession the opportunity to consider intervening in order to argue the public interest points involved.
27 Hodgson & Others v Imperial Tobacco Ltd & Gallaher.
28 Ridehalgh v Horsefield at 229D-E and 237H, citing and endorsing observations in Orchard v South Eastern Electricity Board [1987] QB 565 at 577G and 580E.
29 Ridehalgh v Horsefield at 238A-B.
30 Ridehalgh v Horsefield at 238A-B. The Court said that drawing the distinction "must depend on the professional judgment of those involved".
31 Medcalf v Mardell 2003 AC 120 HL
32 Ridehalgh v Horsefield at 236E-H; and see Antonelli v Wade Gery Farr [1994] Ch 205 from 264 (in which reliance was placed on the importance of the Bar's Code of Conduct). This proposition (14), it is suggested, holds good even though public interest considerations no longer found an immunity from an action for negligence against a barrister at the suit of a client in respect of his conduct and management of a case in court and pre-trial work intimately connected with the conduct of the case in court. Contrast the problems relating to diaries or listing, as in R v Secretary of State for the Home Department, ex p. Mahmood [1999] C.O.D. 119 and Re a Barrister (Wasted Costs Order) (No.4 of 1992), The Times 15 March 1994. Cf. Re a Barrister (Wasted Costs Order) (No. 4 of 1993), The Times, April 21 1995.
33 Ridehalgh v Horsefield at 237E-F. The Court of Appeal indicated that where the conduct was proved but no waste of costs was shown to have resulted the case may be one to be referred to an appropriate disciplinary body or the legal aid authorities. See also R v M (Wasted Costs Order) [2000] PNLR 214.
34 From 2 December 2002 the court can now by amendment to CPR 48.7 direct a costs judge or a district judge to decide the amount of costs to be disallowed or paid
35 [1993] QB 293; Archbold 2000 at para 6-41 and following.
36 For the recommended course to be adopted at the conclusion of appeals relating to children, see Re O (A Minor) (Costs: Liability of Legal Aid Board) [1997] 1 FLR 465. The case may also be of assistance in other situations where the possibility of an order for costs against the Legal Aid Board/ Legal Services Commission and of an order for wasted costs both arise.
37 Ridehalgh v Horsefield at 238G. In civil cases, there is express provision that the Court "will give directions about the procedure that will be followed in each case in order to ensure that the issues are dealt with in a way that is fair and as simple and summary as the circumstances permit": Para 53.5 of the Costs PD.
38 Ridehalgh v Horsefield at 238B-D, and see also S v M (Wasted Costs Order), The Times, March 26 1998 and Film Lab Systems International Limited v Pennington [1994] 4 All ER 673. For a description of the approach in criminal cases see para 8.4 of the Practice Direction (Costs in Criminal Proceedings), and Re A Barrister (Wasted Costs Order) (No 1 of 1991). In civil cases see also Para 53.1 of the Costs PD. Whilst confirming that "in general" applications for wasted costs are best left until after the end of the trial, the Practice Direction confirms that they can however "be made at any stage in the proceedings up to and including the proceedings relating to the detailed assessment of costs". Further in civil cases, the fact that there is a funding arrangement in place, may mean that assessment of any "additional liability" (i.e. the percentage increase, the insurance premium, or the additional amount in respect of provision made by a membership organisation: see further CPR 43.2(1)(o). may have to wait until the conclusion of the proceedings or the part of the proceedings to which the funding arrangement relates (Paragraph 53.10 of the Costs PD).
39 Re Freudiana Holdings Limited The Times 4 December 1995.
40 Ridehalgh v Horsefield at 238H. See also Wall v Lefever The Times 1 August 1997 and In re Merc Property Ltd The Times 19 May 1999.
41 In re Merc Property and Re Freudiana Holdings.
42 Ridehalgh v Horsefield at 238D-E.
43 Ridehalgh v Horsefield at 238D-E. For the position in non-adversarial care proceedings see Re G (Children) (care proceedings: wasted costs) [1999] 4 AER 371.
44 See Manzanilla Ltd v Corton Property and Investments Ltd The Times 4 August 1997.
45 Turner Page Music v Torres Design Associates Ltd The Times 3 August 1998.
46 See Turner Page Music v Torres Design. But see Fletamentos Maritimos SA v Effjohn International BV Unreported (CA) 10 December 1997.
47 See Ridehalgh v Horsefield at 239D-F, and Re Freudiana Holdings Limited The Times 4 December 1995. "... [at the first stage] judges may not infrequently decide that further proceedings are not likely to be justified" (Ridehalgh v Horsefield at 239E). In civil cases the procedure that will be followed "as a general rule" is now expressed as follows (Para 53.6 of the Costs PD):
"(1) in the first stage, the court must be satisfied-
(a) that it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made, and
(b) the wasted costs proceedings are justified notwithstanding the likely costs involved.
(2) at the second stage (even if the court is satisfied under paragraph (1) above) the court will consider, after giving [the barrister] an opportunity to give reasons why the court should not make a wasted costs order, whether it is appropriate to make a wasted costs order in accordance with paragraph 53.4 above".
However, in a civil case on an application for a wasted costs order the court may proceed to the second stage without first adjourning the hearing "if it is satisfied that the legal representative has already had a reasonable opportunity to give reasons why the court should not make a wasted costs order": Para 53.7 of the Costs PD).
48 CPR Rule 48.7 (in civil cases). This does not mean that the Court must always adjourn: see para 53.7 of the Costs PD. Note that a party may apply for an order by filing an application notice in accordance with CPR Part 23 or by making an application orally in the course of any hearing (Para 53.3 of the Costs PD; where an application notice is used see also para 53.8 of the Costs PD).
49 Where, as the Court pointed out in Ridehalgh v Horsefield at 239C, although dealing with the wording of the former RSC, "the language of the rule recognises a shift in the evidential burden", note however that the persuasive burden does not shift. "A wasted costs order should not be made unless the applicant satisfies the court, or the court itself is satisfied, that an order should be made. The representative is not obliged to prove that it should not.": Ridehalgh v Horsefield at 239C.
50 Ridehalgh v Horsefield at 238H. In civil cases see also para 53.8 of the Costs PD. In criminal cases see also In Re A Barrister (Wasted Costs Order) (No 1 of 1991).
51 In criminal cases, see Re A Barrister (Wasted Costs Order) (No 1 of 1991), Regulation 3B of the Costs in Criminal Cases (General) Regulations 1986, and para 8.2 of the Practice Direction (Costs in Criminal Proceedings). In civil cases CPR 48.7(5) provides that the court may direct that notice shall be given to the respondent barrister's client of the wasted costs proceedings or of any wasted costs order.
52 Ridehalgh v Horsefield at 231F; In re A Barrister (Wasted Costs Order) (No. 1 of 1991).
53 Ridehalgh v Horsefield at 231F-G; In re A Barrister (Wasted Costs Order) (No. 1 of 1991). In civil cases see also the summary at para 2.4 of the Costs PD.
54 Ridehalgh v Horsefield at 238H.
55 Para 8.3 of Part VIII of the Practice Direction (Costs in Criminal Proceedings). As the paragraph emphasises, the Court cannot however delegate its decision to the appropriate authority.
56 CPR 48.7(6). In civil cases the court may also refer "the question of wasted costs" to a costs judge, or a district judge "instead of making a wasted costs order": CPR 48.7(7).
57 Ridehalgh v Horsefield at 239E-F.
58 In civil cases the position summarised in Ridehalgh v Horsefield at 231F-G must now be read with the requirement in CPR 48.7(4) for the amount to be specified. In criminal cases see In re A Barrister (Wasted Costs Order) (No. 1 of 1991) and note also para 8.5 of the Practice Direction (Costs in Criminal Proceedings).
59 See (in civil cases) section 51(6) of the Supreme Court Act 1981 and para 53.9 of the Costs PD; (in criminal cases) section 19A(1) of the Prosecution of Offences Act 1985. At least in civil cases costs relating to items of work rather than to a specified sum may be disallowed: see para 53.9 of the Costs PD.
60 Ridehalgh v Horsefield at 238F.
61 Re A Barrister (Wasted Costs Order) (No 1 of 1991).
62 Manzanilla Ltd v Corton Property & Investments Ltd The Times 4 August 1997.
63 Note however the view expressed in In re H (a Minor) (Court bundles: Disallowance of fees) to the effect that there was no justification for not identifying lawyers against whom wasted costs orders were made, or whose fees were disallowed for breach of good practice.
64 In re Hickman & Rose (Solicitors) (Wasted costs order) (No 10 of 1999).
65 See Wall v Lefevre and Fryer v Royal Institution of Chartered Surveyors.
66 See Fryer v Royal Institution of Chartered Surveyors.
67 The stages contemplated by para 53.6 of the Costs PD.
68 Ridehalgh v Horsefield at 237C.
69 Medcalf v Mardell 2003 AC 120
70 Ridehalgh v Horsefield at 236H-237E.
71 Ridehalgh v Horsefield at 237D. See for example S v M (Wasted Costs Order) The Times March 26 1998.
72 Ridehalgh v Horsefield at 238E.
73 General Mediterranean Holdings SA v Patel [2000] 1 WLR 272.