[1] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR giving the judgment of the Court of Appeal, said, at 225 (listing a number of safeguards to the trial system):

'Solicitors and barristers may in certain circumstances be ordered to compensate a party to litigation other than the client for whom they act for costs incurred by that party as a result of acts done or omitted by the solicitors or barristers in their conduct of the litigation.

It is the scope and effect of this last safeguard, and its relation with the others briefly mentioned, which are in issue in these appeals. We shall hereafter refer to this jurisdiction, not quite accurately, as "the wasted costs jurisdiction" and to orders made under it as "wasted costs orders."'

[2] In the Senior Courts Act 1981 (formerly known as Supreme Court Act 1981), there is section 51, entitled 'Costs in civil division of Court of Appeal, High Court and county courts'. That section, in full, reads:

'(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in(a) the civil division of the Court of Appeal;

(b) the High Court; 

(ba) the family court; and

(c) the county court,

shall be in the discretion of the court.

(2) Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs.

(3) The court shall have full power to determine by whom and to what extent the costs are to be paid.

(4) In subsections (1) and (2) “proceedings” includes the administration of estates and trusts.

(5) Nothing in subsection (1) shall alter the practice in any criminal cause, or in bankruptcy.

(6) In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.

(7) In subsection (6), “wasted costs” means any costs incurred by a party-

(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or

(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.

(7A) Where the court exercises a power under subsection (6) in relation to costs incurred by a party, it must inform such of the following as it considers appropriate-

(a) an approved regulator;

(b) the Director of Legal Aid Casework.

(8) Where(a) a person has commenced proceedings in the High Court; but

(b) those proceedings should, in the opinion of the court, have been commenced in the county court or family court in accordance with any provision made under section 1 of the Courts and Legal Services Act 1990 or by or under any other enactment, the person responsible for determining the amount which is to be awarded to that person by way of costs shall have regard to those circumstances.

(9) Where, in complying with subsection (8), the responsible person reduces the amount which would otherwise be awarded to the person in question-

(a) the amount of that reduction shall not exceed 25 per cent; and

(b) on any taxation of the costs payable by that person to his legal representative, regard shall be had to the amount of the reduction.

(10) The Lord Chancellor may by order amend subsection (9)(a) by substituting, for the percentage for the time being mentioned there, a different percentage.

(11) Any such order shall be made by statutory instrument and may make such transitional or incidental provision as the Lord Chancellor considers expedient.

(12) No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament.

(12A) In subsection (7A)“approved regulator” has the meaning given by section 20 of the Legal Services Act 2007; “the Director of Legal Aid Casework” means the civil servant designated under section 4 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

(13) In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.'

[3] For the Crown Court, see: (a) s.52 of the Senior Courts Act 1981, entitled 'Costs in Crown Court'; (b) s.52A of the Senior Courts Act 1981, entitled 'Appeals to Crown Court: criminal courts charge'.

See sections 111 and 112 of the Courts and Legal Services Act 1990 - which make provision for wasted costs to be awarded in criminal proceedings and civil proceedings in the magistrates' court.

[4] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462 ('Ridehalgh'), Bingham MR set out 5 safeguards, the last of which was relevant one for the purposes of the appeals in Ridehalgh. All the safeguards identified are set out below, but it is also helpful to provide the preceding paragraph in Bingham MR's judgment. At p.224-225, Bingham MR said:

'Our legal system, developed over many centuries, rests on the principle that the interests of justice are on the whole best served if parties in dispute, each represented by solicitors and counsel, take cases incapable of compromise to court for decision by an independent and neutral judge, before whom their relationship is essentially antagonistic: each is determined to win, and prepares and presents his case so as to defeat his opponent and achieve a favourable result. By the clash of competing evidence and argument, it is believed, the judge is best enabled to decide what happened, to formulate the relevant principles of law and to apply those principles to the facts of the case before him as he has found them.

Experience has shown that certain safeguards are needed if this system is to function fairly and effectively in the interests of parties to litigation and of the public at large. None of these safeguards is entirely straightforward, and only some of them need to be mentioned here. (1) Parties must be free to unburden themselves to their legal advisers without fearing that what they say may provide ammunition for their opponent. To this end a cloak of confidence is thrown over communications between client and lawyer, usually removable only with the consent of the client. (2) The party who substantially loses the case is ordinarily obliged to pay the legal costs necessarily incurred by the winner. Thus hopeless claims and defences are discouraged, a willingness to compromise is induced and the winner keeps most of the fruits of victory. But the position is different where one or both parties to the case are legally-aided: section 17 of the Legal Aid Act 1988 and Part XIII of the Civil Legal Aid (General) Regulations 1989 (S.I. 1989 No. 339) restrict the liability of legally-assisted parties to pay costs if they lose. and sometimes the losing party is impoverished and cannot pay. (3) The law imposes a duty on lawyers to exercise reasonable care and skill in conducting their clients' affairs. This is a duty owed to and enforceable by the client, to protect him against loss caused by his lawyer's default. But it is not an absolute duty. Considerations of public policy have been held to require, and statute now confirms, that in relation to proceedings in court and work closely related to proceedings in court advocates should be accorded immunity from claims for negligence by their clients: Rondel v. Worsley [1969] 1 A.C. 191; Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198; section 62 of the Courts and Legal Services Act 1990. (4) If solicitors or barristers fail to observe the standards of conduct required by the Law Society or the General Council of the Bar (as the case may be) they become liable to disciplinary proceedings at the suit of their professional body and to a range of penalties which include fines, suspension from practice and expulsion from their profession. Procedures have changed over the years. The role of the courts (in the case of solicitors) and the Inns of Court (in the case of barristers) has in large measure been assumed by the professional bodies themselves. But the sanctions remain, not to compensate those who have suffered loss but to compel observance of prescribed standards of professional conduct. Additional powers exist to order barristers, solicitors and those in receipt of legal aid to forgo fees or remuneration otherwise earned. (5) Solicitors and barristers may in certain circumstances be ordered to compensate a party to litigation other than the client for whom they act for costs incurred by that party as a result of acts done or omitted by the solicitors or barristers in their conduct of the litigation.'

[5] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR said, p.227 to 232:

'When Myers v. Elman was decided, the court's wasted costs jurisdiction was not regulated by the Rules of the Supreme Court, although Ord. 65, r. 11 did provide for costs to be disallowed as between solicitor and client or paid by a solicitor to his client where such costs had been "improperly or without any reasonable cause incurred" or where "by reason of any undue delay in proceeding under any judgment or order, or of any misconduct or default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same." There was also provision in Ord. 65, r. 5 for a solicitor to pay costs to any or all parties if his failure to attend or deliver a document caused a delay in proceedings. But the rules reflected no general wasted costs jurisdiction. Following the decision the rules were not amended to regulate the court's inherent wasted costs jurisdiction, but the jurisdiction itself was preserved by section 50(2) of the Solicitors Act 1957. In 1960 a new rule (which later became Ord. 62, r. 8(1)) was introduced which did regulate, although not enlarge, this inherent jurisdiction. The new rule provided:

"Subject to the following provisions of this rule, where in any proceedings costs are incurred improperly or without reasonable cause or are wasted by undue delay or any other misconduct or default, the court may make against any solicitor whom it considers to be responsible (whether personally or through a servant or agent) an order - (a) disallowing the costs as between the solicitor and his client; and (b) directing the solicitor to repay to his client costs which the client has been orderded to pay to other parties to the proceedings; or (c) directing the solicitor personally to indemnify such other parties against costs payable by them."

In paragraphs (a) and (b) the effect of the old rule was reproduced. In paragraph (c) the effect of Myers v. Elman [1940] A.C. 282 was recognised. It is plain that expressions such as "improperly," "without reasonable cause" and "misconduct" are to be understood in the sense given to them by their Lordships in that case.

Both before and after introduction of the new rule, contested applications for wasted costs orders against solicitors did come before the courts. Edwards v. Edwards [1958] P. 235, Wilkinson v. Wilkinson [1963] P. 1, Mauroux v. Soc. Com. Abel Pereira da Fonseca S.A.R.L. [1972] 1 W.L.R. 962, Currie & Co. v. The Law Society [1977] Q.B. 990 and R. & T. Thew Ltd. v. Reeves (No. 2) (Note) [1982] Q.B. 1283 are examples. But we believe such applications to have been infrequent. In the course of their practices the three members of this court were personally involved in only one such application.

During the 1980s the tempo quickened. In Davy-Chiesman v. Davy-Chiesman [1984] Fam. 48 a legally-aided husband made an application for ancillary relief against his wife. The judge who heard the application dismissed it, observing that it was without any merit, should not have been made and most certainly should not have been pursued to the end. The wife obtained the usual costs order against the husband, not to be enforced without leave of the court. She then sought costs against the legal aid fund. The Law Society, as administrator of the legal aid fund, applied that the husband's solicitor personally pay the costs of both husband and wife. The judge rejected that application and the Law Society appealed. The judgment of the Court of Appeal is authority for two propositions. (1) Subject to any express provisions of the Legal Aid Act 1988 or regulations to the contrary, the inter-relationship of the lay client, solicitor and counsel and the incidents of that relationship, for instance relating to privilege, are no different when the client is legally aided from when he is not. (2) Although a solicitor is in general entitled to rely on the advice of counsel properly instructed, he is not entitled to follow such advice blindly but is in the ordinary way obliged to apply his own expert professional mind to the substance of the advice received. On the facts, the Court of Appeal held that the solicitor should have appreciated the obvious unsoundness of the advice given by counsel after a certain date, and should have communicated his view to the Law Society. The court therefore allowed the appeal in part. The court plainly regarded counsel as substantially responsible, but there was at the time no jurisdiction to make an order against a barrister.

In Orchard v. South Eastern Electricity Board [1987] Q.B. 565 the plaintiff was again legally-aided with a nil contribution. His claim failed. The usual order, not to be enforced without leave, was made in the defendants' favour. An application was made against the plaintiff's solicitors personally and this was dismissed both by the trial judge and on appeal. In the course of his judgment on appeal, Sir John Donaldson M.R. made certain observations about the position of the Bar, but it would seem that these were obiter since no claim was or could have been made against counsel for the plaintiff. The case is notable first for Sir John Donaldson M.R.'s ruling on the exercise of the jurisdiction under Ord. 62, r. 8 as it then stood. He said, at p. 572:

"That said, this is a jurisdiction which falls to be exercised with care and discretion and only in clear cases. In the context of a complaint that litigation was initiated or continued in circumstances in which to do so constituted serious misconduct, it must never be forgotten that it is not for solicitors or counsel to impose a pre-trial screen through which a litigant must pass before he can put his complaint or defence before the court. On the other hand, no solicitor or counsel should lend his assistance to a litigant if he is satisfied that the initiation or further prosecution of a claim is mala fide or for an ulterior purpose or, to put it more broadly, if the proceedings would be, or have become, an abuse of the process of the court or unjustifiably oppressive."

Secondly, the decision reaffirms that a solicitor against whom a claim is made must have a full opportunity of rebutting the complaint, but recognises that he may be hampered in doing so by his duty of confidentiality to the client "from which he can only be released by his client or by overriding authority:" see p. 572G. Thirdly, the judgments highlight the extreme undesirability of claims for wasted costs orders being used as a means of browbeating, bludgeoning or threatening the other side during the progress of the case: see pp. 577G, 580E. Such a practice, it was pointed out, could gravely undermine the ability of a solicitor, particularly a solicitor working for a legally-aided client, to do so with the required objectivity and independence.

In 1986 the relevant Rules of the Supreme Court were amended. Ord. 62, r. 8 became Ord. 62, r. 11, but with some rewording. It now read:

"11(1) Subject to the following provisions of this rule, where it appears to the court that costs have been incurred unreasonably or improperly in any proceedings or have been wasted by failure to conduct proceedings with reasonable competence and expedition, the court may (a) order - (i) the solicitor whom it considers to be responsible (whether personally or through a servant or agent) to repay to his client costs which the client has been ordered to pay to any other party to the proceedings; or (ii) the solicitor personally to indemnify such other parties against costs payable by them; and (iii) the costs as between the solicitor and his client to be disallowed; or (b) direct a taxing officer to inquire into the matter and report to the court, and upon receiving such a report the court may make such order under sub-paragraph (a) as it thinks fit."

It is noteworthy that the reference to "misconduct" is omitted, as is the implication that any conduct must amount to misconduct if it is to found a wasted costs order. More importantly, reference to "reasonable competence" is introduced, suggesting the ordinary standard of negligence and not a higher standard requiring proof of gross neglect or serious dereliction of duty.

The Court of Appeal had occasion to construe the new rule in Sinclair-Jones v. Kay [1989] 1 W.L.R. 114. In his judgment, at p. 121A, May L.J. read the new rule as substantially different from the old, and, at p. 121F, as intended to widen the court's powers. It was no longer necessary to apply the test of gross misconduct laid down in the older authorities: see p. 122A. "The court regarded the new power as salutary, particularly as a means of penalising unreasonable delay:" see pp. 121H, 122A, C.

In Holden & Co. v. Crown Prosecution Service [1990] 2 Q.B. 261, the court's decision in Sinclair-Jones v. Kay was criticised and not followed, but the correctness of that judgment was affirmed in Gupta v. Comer [1991] 1 Q.B. 629, where Ord. 62, r. 11 as it then stood was again considered. Part of the court's reasoning in upholding the earlier decision cannot, it would seem, survive later authority, but there is no ground to question its conclusion that the new rule was intended to cut down limitations hitherto thought to restrict the court's jurisdiction to make wasted costs orders.

In his judgment in Gupta v. Comer, Lord Donaldson of Lymington M.R. referred, at p. 635, to legislative amendments to section 51 of the Supreme Court Act 1981 which would enable new rules to be made "imposing an even stricter standard than that which Ord. 62, r. 11 has been held to impose." This was a reference to what became the Courts and Legal Services Act 1990. Section 4 of that Act substituted a new section 51 in the Supreme Court Act 1981. Relevant for present purposes are the following subsections of the new section:

"51(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in - (a) the civil division of the Court of Appeal; (b) the High Court; and (c) any county court, shall be in the discretion of the court. ... (6) In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court. (7) In subsection (6), 'wasted costs' means any costs incurred by a party - (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay. ... (13) In this section 'legal or other representative,' in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf."

The new subsection (6) of section 51 was extended to civil proceedings in the Crown Court. Section 111 of the Act of 1990 made a similar amendment to the Prosecution of Offences Act 1985, applicable to criminal proceedings in the Court of Appeal, the Crown Court and the magistrates' court. Section 112 of the Act of 1990 amended the Magistrates' Courts Act 1980 to similar effect. We should also draw attention to section 62 of the Act of 1990, which was in these terms:

"62(1) A person - (a) who is not a barrister; but (b) who lawfully provides any legal services in relation to any proceedings, shall have the same immunity from liability for negligence in respect of his acts or omissions as he would have if he were a barrister lawfully providing those services. (2) No act or omission on the part of any barrister or other person which is accorded immunity from liability for negligence shall give rise to an action for breach of any contract relating to the provision by him of the legal services in question."

With effect from 1 October 1991 Ord. 62, r. 11 was amended to supplement the new section 51 of the Supreme Court Act 1981. It is enough to summarise the effect of the rule without reciting its full terms. Where the court makes a wasted costs order, it must specify in its order the costs which are to be paid. As under previous versions of the rule, the court may direct a taxing officer to inquire into the matter and report back or it may refer the matter to a taxing officer. The court may not make an order under section 51(6) unless it has given the legal representative a reasonable opportunity to appear and show cause why an order should not be made, although this obligation is qualified where the progress of proceedings is obstructed by a legal representative's failure to attend or deliver a document or proceed. The court may direct the Official Solicitor to attend and take such part in any proceedings or inquiry under the rule as the court may direct.

Some aspects of this new wasted costs regime must be considered in more detail below. It should, however, be noted that the jurisdiction is for the first time extended to barristers. There can in our view be no room for doubt about the mischief against which these new provisions were aimed: this was the causing of loss and expense to litigants by the unjustifiable conduct of litigation by their or the other side's lawyers. Where such conduct is shown, Parliament clearly intended to arm the courts with an effective remedy for the protection of those injured.

Since the Act there have been two cases which deserve mention. The first is In re A Barrister (Wasted Costs Order) (No. 1 of 1991) [1993] Q.B. 293. This arose out of an unhappy difference between counsel and a judge sitting in the Crown Court in a criminal case. It was held on appeal, in our view quite rightly, that courts should apply a three-stage test when a wasted costs order is contemplated. (1) Has the legal representative of whom complaint is made acted improperly, unreasonably 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 legal representative to compensate the applicant for the whole or any part of the relevant costs? (If so, the costs to be met must be specified and, in a criminal case, the amount of the costs.) We have somewhat altered the wording of the court's ruling but not, we think, its effect.

The second case, Symphony Group Plc. v. Hodgson [1994] Q.B. 179, arose out of an application for costs against a non-party and not out of a wasted costs order. An observation of Balcombe L.J., at p. 194, is however pertinent in this context also:

"The judge should be alert to the possibility that an application against a non-party is motivated by resentment of an inability to obtain an effective order for costs against a legally aided litigant. The courts are well aware of the financial difficulties faced by parties who are facing legally aided litigants at first instance, where the opportunity of a claim against the Legal Aid Board under section 18 of the Legal Aid Act 1988 is very limited. Nevertheless the Civil Legal Aid (General) Regulations 1989 (S.I. 1989 No. 339/89), and in particular regulations 67, 69, and 70, lay down conditions designed to ensure that there is no abuse of legal aid by a legally assisted person and these are designed to protect the other party to the litigation as well as the Legal Aid Fund. The court will be very reluctant to infer that solicitors to a legally aided party have failed to discharge their duties under the regulations - see Orchard v. South Eastern Electricity Board [1987] Q.B. 565 - and in my judgment this principle extends to a reluctance to infer that any maintenance by a non-party has occurred."'

[6] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR, under the heading 'Legal Aid', said, at p.234 to 235:

'Section 31(1) of the Legal Aid Act 1988 provides that receipt of legal aid shall not, save as expressly provided, affect the relationship between or rights of a legal representative and client or any privilege arising out of the relationship nor the rights or liabilities of other parties to the proceedings or the principles on which any discretion is exercised. (The protection given to a legally-assisted party in relation to payment of costs is, of course, an obvious express exception.) This important principle has been recognised in the authorities. It is incumbent on courts to which applications for wasted costs orders are made to bear prominently in mind the peculiar vulnerability of legal representatives acting for assisted persons, to which Balcombe L.J. adverted in Symphony Group Plc. v. Hodgson [1994] Q.B. 179 and which recent experience abundantly confirms. It would subvert the benevolent purposes of this legislation if such representatives were subject to any unusual personal risk. They for their part must bear prominently in mind that their advice and their conduct should not be tempered by the knowledge that their client is not their paymaster and so not, in all probability, liable for the costs of the other side.'

[7] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR, under the heading 'The applicant', said, at p.238:

'Under the rules, the court itself may initiate the inquiry whether a wasted costs order should be made. In straightforward cases (such as failure to appear, lateness, negligence leading to an otherwise avoidable adjournment, gross repetition or extreme slowness) there is no reason why it should not do so. But save in the most obvious case, courts should in our view be slow to initiate the inquiry. If they do so in cases where the inquiry becomes complex and time-consuming, difficult and embarrassing issues on costs can arise: if a wasted costs order is not made, the costs of the inquiry will have to be borne by someone and it will not be the court; even if an order is made, the costs ordered to be paid may be small compared with the costs of the inquiry. In such cases courts will usually be well advised to leave an aggrieved party to make the application if so advised; the costs will then, in the ordinary way, follow the event between the parties.'

[8] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR, under the heading '"Show cause"', said, at p.239:

'Although Ord. 62, r. 11(4) in its present form requires that in the ordinary way the court should not make a wasted costs order without giving the legal representative "a reasonable opportunity to appear and show cause why an order should not be made," this should not be understood to mean that the burden is on the legal representative to exculpate himself. 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. But the rule clearly envisages that the representative will not be called on to reply unless an apparently strong prima facie case has been made against him and the language of the rule recognises a shift in the evidential burden.'

Note, Ord.62, r.11(4) is now obsolete. 

[9] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR, under the heading 'The timing of the application', said, at p.238:

'In Filmlab Systems International Ltd. v. Pennington, The Times, 9 July 1993, Aldous J. expressed the opinion that wasted costs orders should not, save in exceptional circumstances, be sought until after trial. He highlighted a number of dangers if applications were made at an interlocutory stage, among them the risk that a party's advisers might feel they could no longer act, so that the party would in effect be deprived of the advisers of his choice. It is impossible to lay down rules of universal application, and sometimes an interlocutory battle resolves the real dispute between the parties. But speaking generally we agree that in the ordinary way applications for wasted costs are best left until after the end of the trial.'

[10] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR, under the heading 'Procedure', said, at p.238-239:

'The procedure to be followed in determining applications for wasted costs must be laid down by courts so as to meet the requirements of the individual case before them. The overriding requirements are that any procedure must be fair and that it must be as simple and summary as fairness permits. Fairness requires that any respondent lawyer should be very clearly told what he is said to have done wrong and what is claimed. But the requirement of simplicity and summariness means that elaborate pleadings should in general be avoided. No formal process of discovery will be appropriate. We cannot imagine circumstances in which the applicant should be permitted to interrogate the respondent lawyer, or vice versa. Hearings should be measured in hours, and not in days or weeks. Judges must not reject a weapon which Parliament has intended to be used for the protection of those injured by the unjustifiable conduct of the other side's lawyers, but they must be astute to control what threatens to become a new and costly form of satellite litigation.'

[11] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR, under the heading 'Discretion', said, at p.239:

'It was submitted, in our view correctly, that the jurisdiction to make a wasted costs order is dependent at two stages on the discretion of the court. The first is at the stage of initial application, when the court is invited to give the legal representative an opportunity to show cause. This is not something to be done automatically or without careful appraisal of the relevant circumstances. The costs of the inquiry as compared with the costs claimed will always be one relevant consideration. This is a discretion, like any other, to be exercised judicially, but judges may not infrequently decide that further proceedings are not likely to be justified. The second discretion arises at the final stage. Even if the court is satisfied that a legal representative has acted improperly, unreasonably or negligently and that such conduct has caused the other side to incur an identifiable sum of wasted costs, 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.'

In Persaud v Persaud [2003] EWCA Civ 394; [2004] 1 Costs L.R. 1 ('Persaud'), Peter Gibson LJ with whom Mummery LJ and Blackburne J agreed), noted the importance of the discretion, at stage 1 (the first discretion). Peter Gibson LJ in Persaud said, at paragraph 9:

'By CPR 48.7 the court, when considering whether to make an order, must give the legal representative a reasonable opportunity to attend a hearing to give reasons why it should not make that order. The jurisdiction to make a wasted costs order is dependent at two stages on the discretion of the court: (i) when on the initial application the court is invited to give the legal representative an opportunity to show cause, and (ii) at the final stage after that opportunity has been given. As is made clear in Ridehalgh v Horsefield [1994] Ch 205 at page 239D per Sir Thomas Bingham MR giving the judgment of this court (consisting of himself, Rose and Waite LJJ), the first stage is no mere formality but requires the court to exercise its discretion judicially having regard to the case put by the party seeking the order. A strong prima facie case must be shown...' 

[12] In Fletamentos Maritimos SA v Effjohn International BV (Wasted Costs) [2003] Lloyd's Rep. P.N. 26, Simon Brown LJ said, at paragraph 5:

'The principles upon which these provisions are to be applied have been established by a trilogy of recent cases in this court: Ridehalgh v Horsefield [1994] Ch 205, Tolstoy-Miloslavsky v Aldington [1996] 1 WLR 736, and Wall v Lefever (unreported, transcript dated 14th July 1997). Amongst them are these (and here I quote only the essence of principles elaborated in these authorities with very great care):

1. Improper conduct is that which would be so regarded “according to the consensus of professional (including judicial) opinion.” Unreasonable conduct “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 … The acid test is whether the conduct permits of a reasonable explanation.” Negligent conduct is to be understood “in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.” (all from Ridehalgh)

2. “Legal representatives will, of course, whether barristers or solicitors, advise clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject their advice and insist that cases be litigated. 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 … 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 … 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.” (all from Ridehalgh)

3. “A solicitor does not abdicate his professional responsibility when he seeks the advice of counsel.” (Ridehalgh) The role which leading and junior counsel played in Tolstoy in putting their signatures to the statement of claim “did not exonerate the solicitors from their obligation to exercise their own independent judgment to consider whether the claim could properly be pursued; they were not entitled to follow counsel blindly.”

4. “The jurisdiction to make a wasted costs order must be exercised with care and only in a clear case.” (Tolstoy) “It should not be used to create subordinate or satellite litigation, which is as expensive and as complicated as the original litigation. It must be used as a remedy in cases where the need for a wasted costs order is reasonably obvious. It is a summary remedy which is to be used in circumstances where there is a clear picture which indicates that a professional adviser has been negligent etc.” (Wall v Lefever)'

[13] In Medcalf v Mardell [2003] 1 AC 120; [2002] 3 WLR 172, under the heading 'Jurisdiction', Lord Bingham said, at paragraphs 18 to 20:

'The barristers' argument on jurisdiction was first raised in the House. It was said, first, that section 51 conferred no right on a party to seek a wasted costs order against any legal representative other than his own. Thus the court had no power to make an order against the legal representative of any opposing party. This submission was based on the wording of section 51(13) quoted above, and in particular the words "on his behalf": it was argued that a party could only seek a wasted costs order against a person exercising a right of audience or a right to conduct litigation on his behalf or any employee of such a person.

There are in my opinion very compelling reasons why this construction cannot reflect the intention of Parliament. It is clear that in the exercise of its inherent jurisdiction the court could order a solicitor to compensate a party who was not the client of that solicitor, as it did in Myers v Elman [1940] AC 282. In Orchard v South Eastern Electricity Board [1987] QB 565, 571, 581, the Court of Appeal expressly dissented from the view, advanced obiter by Lord Denning MR in Kelly v London Transport Executive [1982] 1 WLR 1055, 1065, that this jurisdiction could be exercised against counsel also. In the context of the 1990 Act, which among other things provided for a substantial extension of solicitors' rights of audience in the higher courts, this inequality of treatment as between advocates performing the same professional function was plainly indefensible, and the object of section 51(6) and (7) was to put barristers and solicitors, for this purpose, effectively in the same position. Section 51 only applies in civil proceedings, but (as was accepted on behalf of the barristers) it is quite clear from section 111 of the 1990 Act (amending the Prosecution of Offences Act 1985) and section 112 of the 1990 Act (amending the Magistrates' Courts Act 1980) that in criminal proceedings in the Court of Appeal, the Crown Court or a magistrates' court and civil proceedings in a magistrates' court a wasted costs order may be made in favour of a party to the proceedings against the legal representative of any other party. No reason has been advanced why Parliament should have wished to lay down a different rule governing barristers in civil proceedings in the High Court, and it is to my mind inconceivable in the context of the 1990 Act that Parliament should have wished to afford to barristers in civil proceedings (otherwise than in a magistrates' court) a ground of exemption not enjoyed by solicitors. Against arguments of this weight, any submission based on the wording of subsection (13) would have to be irresistible. The barristers' argument is not. The subsection is intended to make plain that no liability can attach to any practitioner not involved in the litigation giving rise to the claim. I note without surprise that a similar conclusion was reached by Neuberger J in Brown v Bennett (No 2) [2002] 1 WLR 713.

The barristers' second argument on jurisdiction was also based on the language of subsection (13). It was to the effect that any order made against them could only relate to their conduct when exercising a right of audience in court. This was because they had no right to conduct litigation, as defined in sections 28 and 119(1) of the 1990 Act. Thus (it was said) they could not be liable in wasted costs for anything done when settling the draft amended notice of appeal or the skeleton arguments, the activities which had in fact given rise to most of the wasted costs claimed against them. A similar argument was advanced to and rejected by Leveson J in Worsley v Tambrands Ltd (unreported) 8 November 2000 and also by Neuberger J in Brown v Bennett (No 2). Both judges were right to reject it. Section 4 of the 1990 Act substituted a new section 51 in the 1981 Act. Once inserted that section was to be read as part of the 1981 Act. Its interpretation was to be governed by its own terms and any other terms of the 1981 Act. I would question whether it would be permissible in principle to construe subsection (13) in the light of definitions imported into the 1990 Act for quite different purposes: see Bennion, Statutory Interpretation, 3rd ed (1997), p 213. The section was intended, as already stated, simply to make plain that no liability could attach to any practitioner not involved in the litigation giving rise to the claim. For the reasons convincingly given by Leveson J it would stultify the section if a barrister were not potentially liable for conduct immediately relevant to the exercise of a right of audience but not involving advocacy in open court. If one might have thought subsection (13) to be unnecessary, the facts of Byrne v Sefton Health Authority [2002] 1 WLR 775 show that it was not.

[14] In Medcalf v Mardell [2003] 1 AC 120; [2002] 3 WLR 172, Lord Bingham said, at paragraphs 23 to 24 as to these two matters to be emphasised:

'First, in a situation in which the practitioner is of necessity precluded (in the absence of a waiver by the client) from giving his account of the instructions he received and the material before him at the time of settling the impugned document, the court must be very slow to conclude that a practitioner could have had no sufficient material. Speculation is one thing, the drawing of inferences sufficiently strong to support orders potentially very damaging to the practitioner concerned is another. The point was well put by Mr George Laurence QC sitting as a deputy High Court judge in Drums and Packaging Ltd v Freeman (unreported) 6 August 1999 when he said, at para 43:

"As it happens, privilege having been waived, the whole story has been told. I cannot help wondering whether I would have arrived at the same conclusion had privilege not been waived. It would not have been particularly easy, in that event, to make the necessary full allowance for the firm's inability to tell the whole story. On the facts known to D3 at the time it launched this application, D3 might very well have concluded that the firm would not be able to avoid a wasted costs order, even on the 'every allowance' basis recommended by Sir Thomas Bingham MR."

Only rarely will the court be able to make "full allowance" for the inability of the practitioner to tell the whole story or to conclude that there is no room for doubt in a situation in which, of necessity, the court is deprived of access to the full facts on which, in the ordinary way, any sound judicial decision must be based. The second qualification is no less important. The court should not make an order against a practitioner precluded by legal professional privilege from advancing his full answer to the complaint made against him without satisfying itself that it is in all the circumstances fair to do so. This reflects the old rule, applicable in civil and criminal proceedings alike, that a party should not be condemned without an adequate opportunity to be heard. Even if the court were able properly to be sure that the practitioner could have no answer to the substantive complaint, it could not fairly make an order unless satisfied that nothing could be said to influence the exercise of its discretion. Only exceptionally could these exacting conditions be satisfied. Where a wasted costs order is 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 is (a) satisfied that there is nothing the practitioner could say, if unconstrained, to resist the order and (b) that it is in all the circumstances fair to make the order.

24. It was not submitted to the House that a relaxation of the existing rules on legal professional privilege could or should be permitted in a case such as the present: the decision of the House in R v Derby Magistrates' Court, Ex p B [1996] AC 487 gave no encouragement to such a submission, and subordinate legislation introduced to modify that decision for purposes of the wasted costs jurisdiction was held to be ultra vires in General Mediterranean Holdings SA v Patel [2000] 1 WLR 272 and was revoked. No attempt has been made to modify the rule by primary legislation. The result no doubt is that in a context such as the present the scope for making wasted costs orders is very limited. This is not necessarily to be regretted. In Ridehalgh v Horsefield [1994] Ch 205, 238-239, the Court of Appeal considered that wasted costs hearings should be measured in hours and urged the courts to be astute to control what threatened to become a new and costly form of satellite litigation. In Harley v McDonald [2001] 2 AC 678, reviewing the exercise by the New Zealand courts of the inherent jurisdiction to order barristers and solicitors to pay costs unnecessarily incurred, the Judicial Committee of the Privy Council observed, at p 703, para 50:

Save in the clearest case, applications against the lawyers acting for an opposing party are unlikely to be apt for summary determination, since any hearing to investigate the conduct of a complex action is itself likely to be expensive and time-consuming. The desirability of compensating litigating parties who have been put to unnecessary expense by the unjustified conduct of their opponents' lawyers is, without doubt, an important public interest, but it is, as the Court of Appeal pointed out in Ridehalgh v Horsefield, at p 226, only one of the public interests which have to be considered.'

[15] In Medcalf v Mardell [2003] 1 AC 120; [2002] 3 WLR 172, Lord Steyn makes some other points about legal professional privilege. Lord Steyn said, at paragraphs 30 to 43:

'30. The legislation empowering the making of wasted costs orders did not expressly address the problem which arises where a barrister is prevented by legal professional privilege from explaining what instructions and material he received from his client: section 51 of the Supreme Court Act 1981. Subsequently, the decision of the House of Lords in R v Derby Magistrates' Court, Ex p B [1996] AC 487, 507d, ascribed to legal professional privilege an absolute character. It appears to pre-empt the creation of exceptions in the interests of justice. Doubts have been expressed about a perceived rigidity of the law: A A S Zuckerman, "Legal Professional Privilege—the Cost of Absolutism" (1996) 112 LQR 535; Colin Tapper, "Prosecution and Privilege" (1996) 1 E & P 5; Colin Passmore, "The Legal Professional Privilege" (1999) 3 E & P 71.

31. It was common ground before the House that in the wasted costs jurisdiction under section 51, the court had no power to relax the privilege so as to enable a barrister to defend himself against allegations of improper conduct. Where a client seeks a wasted costs order against his barrister, a waiver of privilege in relation to all relevant matters will be implied by law: Lillicrap v Nalder & Son [1993] 1 WLR 94; Matthews & Malek, Disclosure, 2nd ed (2000), p 297. Sometimes the jurisdiction will be invoked against a barrister by the opposite party in the proceedings. In that situation the barrister's client will usually have no incentive to waive privilege and will refuse to do so. Here lies the root of a systemic problem.

32. The jurisdiction provides compensation for an aggrieved litigant. It has, however, a penal effect on the practitioner against whom it is exercised: see Myers v Elman [1940] AC 282, 319; Harley v McDonald [2001] 2 AC 678, 703, para 49. In wasted costs proceedings a barrister is therefore entitled to defend himself by placing before the court, without restriction, all logically relevant material about his side of the story.

33. The wasted costs jurisdiction is available in respect of costs incurred by a party "as a result of any improper, unreasonable or negligent act or omission": section 51(7). An allegation of "improper" conduct is the most serious charge. The case against the barristers was throughout advanced and considered by the Court of Appeal on the basis that they had committed improper conduct.

34. The substance of the case against the barristers was that, contrary to paragraph 606 of the Code of Conduct, they made allegations of dishonesty against a litigant without having before them "reasonably credible material which as it stands establishes a prima facie case of [dishonesty]".

35. 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.

36. In the case before the House evidence is that the barristers were aware of the need for caution.

37. By their signatures to documents submitted to the court they vouched for the fact that they had before them material justifying the making of allegations of dishonesty.

38. Improper conduct under section 51(7) does not require proof of bad faith. Nevertheless, it is a highly material circumstance that the Court of Appeal accepted that the barristers believed in good faith that they had material which justified the making of the allegations [2001] Lloyd's Rep PN 146, 158, para 60.

39. Furthermore, it is relevant that both barristers were acknowledged to be competent and experienced practitioners. Their bona fide views that there were materials before them justifying the allegations they made are therefore entitled to some weight. But, despite their best endeavours they failed to obtain a waiver of privilege from their client, and they were therefore unable to explain the grounds for their beliefs.

40. In these circumstances the question is whether the barristers' beliefs that they had material which objectively justified the allegations unquestionably fell outside the range of views which could reasonably be entertained. The burden of proof is on the party applying for the wasted costs order. In Ridehalgh v Horsfield [1994] Ch 205, 239c, Sir Thomas Bingham MR observed that the wasted cost jurisdiction "recognises a shift in the evidential burden". This observation was plainly not intended to have any application where barristers are prevented by professional privilege from telling their side of the story.

41. The point narrows down to the question whether it has been proved that the materials on which the barristers in fact relied did not objectively justify their decision. The majority in the Court of Appeal (Peter Gibson and Schiemann LLJ), disagreeing with a strong dissenting judgment of Wilson J, answered this question in the affirmative. In doing so the Court of Appeal made a judgment, based on inference, as to the nature and contents of the materials before the barristers. What exactly those materials included was and is unknown. Nevertheless, the majority in the Court of Appeal decided that even if the barristers had been permitted to tell their side of the story about the materials, which were before them, it would not have availed them in any way.

42. I cannot accept the view of the majority. The law reports are replete with cases which were thought to be hopeless before investigation but were decided the other way after the court allowed the matter to be tried. Without knowing the barristers' side of the story, I am unwilling to speculate about the nature of the documents before them. In these circumstances it is unnecessary to examine the particulars of the allegations against the barristers which they had no opportunity to answer. Lawyers are also entitled to procedural justice. Due process enhances the possibility of arriving at a just decision. Where due process cannot be observed it places in jeopardy the substantive justice of the outcome. In my view the analysis of Wilson J was realistic and correct.

43. It was impossible to determine the issue fairly. It follows that the wasted costs orders must be quashed.'

[16] Practice Direction 46, paragraph 5 is entitled 'Personal liability of legal representative for costs - wasted costs orders: rule 46.8' and reads:

'5.1 A wasted costs order is an order -

(a) that the legal representative pay a sum (either specified or to be assessed) in respect of costs to a party; or

(b) for costs relating to a specified sum or items of work to be disallowed.

5.2 Rule 46.8 deals with wasted costs orders against legal representatives. Such orders can be made at any stage in the proceedings up to and including the detailed assessment proceedings. In general, applications for wasted costs are best left until after the end of the trial.

5.3 The court may make a wasted costs order against a legal representative on its own initiative.

5.4 A party may apply for a wasted costs order -

(a) by filing an application notice in accordance with Part 23; or

(b) by making an application orally in the course of any hearing.

5.5 It is appropriate for the court to make a wasted costs order against a legal representative, only if -

(a) the legal representative has acted improperly, unreasonably or negligently;

(b) the legal representative’s conduct has caused a party to incur unnecessary costs, or has meant that costs incurred by a party prior to the improper, unreasonable or negligent act or omission have been wasted;

(c) it is just in all the circumstances to order the legal representative to compensate that party for the whole or part of those costs.

5.6 The court will give directions about the procedure to be followed in each case in order to ensure that the issues are dealt with in a way which is fair and as simple and summary as the circumstances permit.

5.7 As a general rule the court will consider whether to make a wasted costs order in two stages -

(a) at the first stage the court must be satisfied -

(i) 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

(ii) the wasted costs proceedings are justified notwithstanding the likely costs involved;

(b) at the second stage, the court will consider, after giving the legal representative an opportunity to make representations in writing or at a hearing, whether it is appropriate to make a wasted costs order in accordance with paragraph 5.5 above.

5.8 The court may proceed to the second stage described in paragraph 5.7 without first adjourning the hearing if it is satisfied that the legal representative has already had a reasonable opportunity to make representations.

5.9 On an application for a wasted costs order under Part 23 the application notice and any evidence in support must identify -

(a) what the legal representative is alleged to have done or failed to do; and

(b) the costs that the legal representative may be ordered to pay or which are sought against the legal representative.'

[17] In Ridehalgh v Horsefield [1994] Ch. 205; [1994] 3 WLR 462, Bingham MR giving the judgment of the Court of Appeal, under the heading 'Threats to apply for wasted costs orders', said, at p.236-237:

'We entirely agree with the view expressed by this court in Orchard v. South Eastern Electricity Board [1987] Q.B. 565 that the threat of proposed applications should not be used as a means of intimidation. On the other hand, if one side considers that the conduct of the other is improper, unreasonable or negligent and likely to cause a waste of costs we do not consider it objectionable to alert the other side to that view; the other side can then consider its position and perhaps mend its ways. Drawing the distinction between unacceptable intimidation and acceptable notice must depend on the professional judgment of those involved.'

[18] In Gray v Going Places Leisure Travel Ltd [2005] EWCA Civ 189; [2005] C.P. Rep. 21, a claimant (with Shoosmith's solicitors instructed; with legal aid) issued a claim against the defendant. On 3.12.02, legal aid for the claimant was withdrawn. On 5.12.02, the trial was listed for 4-5.2.03. On 8.1.03, the claimant applied for a review of the legal aid withdrawal decision. On 20.1.03, the defendant learnt of 3.12.02 decision. On 29.1.03, a circuit judge made an order: (a) unless: (i) claimant file a index bundle by 31.1.03; and (ii) attend the trial, 'the claim should be struck out' (paragraph 4). No indexed bundle was filed by 31.1.03, and on 4.2.03, neither the claimant nor any representative for the claimant, attended the trial. The defendant's solicitor did attend the trial. The circuit judge ordered: '(1) claim dismissed; (2) Judgment for defendant with costs to be subject to detailed assessment if not agreed. Judgment to be paid forthwith; 3. Costs up to the 31 December 2002 not to enforced without further order of the Court. Costs after 31 December 2002 may be enforced.'

On 19.6.03, the defendant issued a WCO application against Shoosmith's solicitors, for costs for the period from 31.12.02 to 4.2.03 (paragraph 6). A district judge acceded to that WCO application.

Shoosmith's appealed (the first appeal), which came before the circuit judge. The circuit judge decided that the district judge had had not jurisdiction to determine the wasted costs application (it'd been allocated to the multi-track, which district judge's did not have jurisdiction in relation to). Neuberger LJ, at paragraph 11, said he agreed with the following passage from the circuit judge's decision:

'If the question of wasted costs was to be raised, then it should have been raised at the end of the brief hearing before me [February 4, 2003], or if not then certainly very shortly after that hearing had been concluded, and I would have been entitled, certainly at the conclusion of the hearing before me, and according to the judgment of Patten J. in the case of Melchior v Vettivel [2002] C.P.Rep. 24 (which the researches of counsel have produced for my consideration), within a short time afterwards. However, the learned district judge had no authority to make any such order in the case. Perhaps, if I had been unavailable, then another judge might have been persuaded to look at the matter, but that was not the case here. If any application for wasted costs was to be made, then it should only have been made to and could only be adjudicated upon by the trial judge himself, namely me. Accordingly, there was in my view no jurisdiction for the learned District Judge to entertain this application and his purported order is of no effect and must be quashed.' 

Neuberger LJ set out his view:

'First, the making of an order as to who should bear the costs and on what basis in respect of proceedings which go to a trial are, in principle, part of the overall order made by the court at the conclusion of the trial. Hence, in relation to costs on interlocutory applications, the need for an order that the costs be reserved or be ordered “in the case” where the tribunal hearing the interlocutory application decides to defer the question of allocation of the costs on an interlocutory issue. Hence also the need to rely on the slip rule to raise an issue of costs after final order has been drawn up as in Inchcape [1942] Ch. 394, and the cases cited in it. Secondly, in the absence of at least a good reason to the contrary, the costs of proceedings (in so far as they have not already been disposed of at an interlocutory stage) should be dealt with by the tribunal which determines the issue which disposes of the case immediately after the judgment in disposing of the case. Thirdly, in principle, there is no difference in this connection between a costs order against a party and a costs order against a non-party. They are all part of the judicial function involved in disposing of a case.

12. In this connection, it appears to me there is force in the submission made by [counsel for Shoosmiths], that ss.51(1) and 51(6) of the Supreme Court Act 1981, when read together, emphasise that wasted costs (the costs dealt with in principle in s.51(6) ) are all part of the costs allocation exercise which is to be implemented by the judge hearing the trial in relation to the costs of the action. Section 51 provides:

“Subject to the provisions of this or any other enactment of the rules of court, the costs of and incidental to all proceedings

… 

(c) any county court

shall be in the discretion of the court.

…

(6) In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.”

13. Fourthly, it is fair to say that where a wasted costs order is sought in respect of an interlocutory matter before trial, it is often better for the application for wasted costs only to be made after the trial: see para.53(1) of the Practice Direction forming part of CPR Pt 48 and the observations in Ridehalgh v Horsefield [1994] Ch. 205 at 238. However, that point does not apply here because we are concerned with an application for wasted costs which relate to part of the proceedings which were before H.H. Judge Mayor on February 4, 2003 and could and should have been applied for at the end of the hearing before the trial judge.

14. Fifthly, having made that point, it is right to record that, in agreement with the judge, it is not mandatory that the application for wasted costs is made at the end of the trial. In many cases a party considering an application for wasted costs order will ask the judge for time to consider whether to make such an application and, even if such an application is made, the normal course is for the court to give directions in relation to the disposal of the application rather than to deal with it straightaway.

15. Sixthly, it is right to record that the application for a wasted costs order can be made after the order in relation to the proceedings have been drawn up. That is not to say the court entertaining the application late will necessarily grant it if there is no good reason for the delay. However, in principle, the application can be made after the matter has otherwise been disposed of for the reasons given by Patten J. (and referred to by H.H. Judge Mayor) in Melchior . However, that does not alter the fact that it is the court that determines the outcome of the proceedings which has the jurisdiction to make any order for wasted costs, and it is, in the absence of good reason, only that court which has that jurisdiction. It is of course possible, because of the death or retirement of the judge concerned, or because of his unavailability for other reasons, for another judge to determine the issue of wasted costs. However, in this case it seems to me that, for the reasons given much more shortly by H.H. Judge Mayor, it was for him to determine the issue of wasted costs and not for the district judge.

16. We were taken by [counsel for Shoosmiths] to CPR r.44.14 which, in certain circumstances, gives the court which is assessing the costs power to make a wasted costs order. As he fairly accepts, that is of no assistance to the claimant in the present case because it is concerned with a wasted costs order made in the course of assessment proceedings. It appears to me that r.44.14(1)(b) should apply in a case where for some reason it would be inappropriate to make the application for wasted costs to the judge who heard the trial. For instance, where it only appears for the first time from the documents revealed on the assessment that a wasted costs order is appropriate. In that connection I would respectfully agree with the analysis in [20] and [21] of the judgment of Jack J. in Aaron v Sheldon [2004] EWHC 1162; [2004] 3 All E.R. 561, that it is appropriate for a wasted costs order, or indeed any other costs order sought in relation to proceedings, to be made to the judge who hears or has heard the proceedings, not to a different judge.'

[19] In Persaud v Persaud [2003] EWCA Civ 394; [2004] 1 Costs L.R. 1, Peter Gibson LJ later returned to the position of the legal representative to a legally aided client. Peter Gibson LJ said, at paragraph 38:

'It is, of course, proper to take account of the fact that the legal representatives' clients are legally aided. There could be abuse if the legal representatives allowed this conduct to be tempered by the fact that their client will probably not have to pay the other side's costs. I have already adverted to the fact that the court is concerned that those acting for legally assisted parties should not find themselves subject to applications for wasted costs when that cannot truly be justified. It is to be borne in mind - as was pointed out in Ridehalgh in the passage of the court's judgment headed “Legal aid” - that by s 31(1) of the Legal Aid Act 1988:

“… receipt of legal aid shall not, save as expressly provided, affect the relationship between or rights of a legal representative and client or any privilege arising out of the relationship nor the rights or liabilities of other parties to the proceedings or the principles on which any discretion is exercised.”

[20] In Isaacs Partnership v Umm Al-Jawaby Oil Service Co Ltd [2003] EWHC 2539 (QB); [2004] PNLR 9, under the heading 'The Legal Framework', Gross J stated, at paragraph 25:

'The jurisdiction to make a wasted costs order has been considered in a number of authorities, including the following which were cited to me: Ridehalgh v Horsefield [1994] Ch. 205 ; General Mediterranean Holdings SA v Patel [2000] 1 W.L.R. 272; Medcalf v Mardell [2002] UKHL 27; [2003] 1 A.C. 120; Fletamentos Maritimos SA v Effjohn International SA [2003] Lloyd's Rep. PN 26; Persaud v Persaud [2003] EWCA Civ 394; Dempsey v Johnstone [2003] EWCA Civ 1134. From these authorities and for present purposes, the legal framework may be summarised as follows:

(1) The source of the jurisdiction is to be found in s.51(6) of the Supreme Court Act 1981 which provides that a court may order a legal representative to meet the whole of any “wasted costs” or such part of them as may be determined in accordance with rules of court. Section 51(7) defines “wasted costs” to mean any costs incurred by a party as a result of any “improper, unreasonable or negligent act or omission on the part of any legal … representative …”. The rules of court are to be found in CPR 48.7 and s.53 of the Costs Practice Direction. s.53.4 of that Practice Direction, set out at 48PD.4, provides as follows:

“It is appropriate for the court to make a wasted costs order against a legal representative, only if -

(1) the legal representative has acted improperly, unreasonably or negligently;

(2) his conduct has caused a party to incur unnecessary costs; and

(3) it is just in all the circumstances to order him to compensate that party for the whole or part of those costs.”

(2) The wasted costs jurisdiction has been described as a “safeguard”, intended to assist in the fair and effective functioning of our adversarial system: Ridehalgh, per Sir Thomas Bingham M.R. (as he then was), at pp.224 et seq. The jurisdiction to make wasted costs orders:

“… discloses a tension between two important public interests. One is that lawyers should not be deterred from pursuing their clients' interests by fear of incurring a personal liability to their clients' opponents; … that wasted costs orders should not become a back-door means of recovering costs not otherwise recoverable against a legally-aided or impoverished litigant; and that the remedy should not grow unchecked to become more damaging than the disease. The other public interest, recently and clearly affirmed by Act of Parliament, is that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponents' lawyers. … Full weight must be given to the first of these public interests, but the wasted costs jurisdiction must not be emasculated.” (ibid, at p.226).

Importantly, a clear distinction is drawn between the mere pursuit of a hopeless case on instructions, on the one hand and lending assistance to proceedings which are an abuse of the process of the court, on the other; the former will not while the latter may give rise to the making of a wasted costs order; (ibid, at pp.233–234).

(3) A wasted costs order can only be made if the conduct of the legal representative in question is improper, unreasonable or negligent. While, in the present context, these terms do not exist in watertight compartments (there is, in particular, some overlap between negligence and unreasonableness), the present case is essentially concerned with negligence, of which more in a moment. Although the jurisdiction is not fettered (provided the conduct in question crosses the threshold of impropriety, unreasonableness or negligence), it is intended to be exercised only in clear cases and should not be used to create subordinate or satellite litigation: Fletamentos, at p.28.

(4) Turning to the meaning of “negligence” in the context of wasted costs orders, it:

“.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.” (Ridehalgh, at p.233).

An applicant for a wasted costs order does not need to establish an actionable breach of the legal representative's duty to his own client; hence the use of the word “untechnical”. That said, mere mistake or error of judgment would not suffice; a wasted costs order will not be made unless the act or omission on the part of the legal representative was such as no reasonably well-informed and competent member of the profession could have made. Indeed, ordinarily at least, where the allegation is that no reasonably competent legal representative would have commenced or continued with an action, the negligence in question must amount to something akin to abuse of process. Ultimately, however, the question is whether, in the circumstances, the legal representative has conducted him or herself with the competence reasonably to be expected of ordinary members of the profession; the authorities do not warrant the conclusion that “negligence” on its own is insufficient for the making of a wasted costs order: see, the explanation in Dempsey, at [24], [25], [28], [40] and [41] of the observations of Lord Hobhouse in Medcalf, at [56] and of Peter Gibson L.J. in Persaud, at [27]. Moreover, for instance:

“… negligence could be the appropriate word to describe a situation in which it is abundantly plain that the legal representative has failed to appreciate that there is a binding authority fatal to the client's case. That may, of itself, justify making a wasted costs order …” (Dempsey, at [28], per Latham L.J.).

(5) The court will have well in mind that a lawyer defending a wasted costs application is not entitled to waive legal professional privilege; the privilege is that of the client not the lawyer: General Mediterranean Holdings S.A., passim. Full allowance must accordingly be made for the inability of lawyers “to tell the whole story” (Ridehalgh, at p.237); when 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.” (Ridehalgh, ibid).

(6) Particular caution is required when considering an application for a wasted costs order in a publicly funded case. First, it is to be recollected that public funding will only have been granted if the LSC (previously the Legal Aid Board) had been satisfied as to the legal merits and reasonableness of prosecuting the claim and subject to a continuing duty resting on the legal representatives to report any change in circumstances: see, the Legal Aid Act, 1988, ss.15(2) and (3) (a) ; the Civil Legal Aid (General) Regulations 1989, regs. 66 and 67. The court would be very reluctant to infer that solicitors to a legally aided party had failed to comply with their duties under the regulations (Ridehalgh, at pp.231–2 and 234–5). Secondly, the court must bear in mind the “peculiar vulnerability” of legal representatives acting for assisted persons (ibid, at p.234). There is an important policy interest in ensuring that such lawyers do not face unusual personal risk and a danger that applications against them may be motivated by resentment, given the inability to obtain an effective order for costs against a legally aided litigant.'

[21] In Morris v Roberts (Inspector of Taxes) (Wasted Costs Order)  [2005] EWHC 1040 (Ch); [2006] STC 135 [2005] PNLR 41 ('Morris'), Lightman J then dismissed various arguments made against this conclusion, at paragraph 60 (Mr Crocker is a solicitor at Howells; the numbered points have been split into separate paragraphs - for ease of reading):

'[Counsel for Howells, the WCO respondent] has advanced a series of arguments to the contrary.

(1) First he says that there can have been no intent to deprive the Revenue of information, for there was no reason to do so: the Revenue have acquired sufficient information to make an assessment. But tactics of total non-cooperation and disregard of statutory notices and court orders have made (as they were designed to make) the task of the Revenue immeasurably more difficult, expensive and protracted.

(2) Secondly Mr Crocker says that it has at all times been open to the Revenue to take steps to enforce the orders for costs and orders for payment of penalties which it has obtained. But the Morrises and Howell have successfully taken every step to prevent this, even going so far as to conceal the Morrises' address.

(3) Thirdly Mr Crocker says that at all times he acted on his clients' instructions and that counsel was involved. But acting on instructions is no answer to the charge of breach of abuse of process and breach of duty to the court and Mr Crocker does not condescend to particulars of counsel's involvement which in any event affords no immunity.

(4) Fourthly Mr Crocker says that his clients will not waive privilege, but that does not preclude a finding of abuse when his conduct admits of no reasonable explanation.

(5) Fifthly it was submitted on behalf of Howell that his impugned conduct did not occasion the wasted costs. If Howell had refused to act, the Morrises may not have instructed other solicitors and may have acted in person or instructed other solicitors who may have proceeded with the appeal. There is no reason to believe that the Morrises would have been willing to come to this country to act in person or would have been prepared to conduct the appeal in person, and it must be presumed that any solicitors instructed in place of Howell would have complied with their duty to the court and refused to prosecute the appeal for the obvious collateral purpose intended.

(6) Sixthly it was submitted on behalf of Howell as a defence that the costs of this application are disproportionate to the costs in issue. There are two answers. The first is that, if a wasted costs order is appropriate, it is no answer to say at the end of the hearing that it should not be made: B v B [2001] F.L.R. 843 at [35]. The second is that, whilst the costs of the second High Court appeal are relatively modest, that appeal was just the end of a string of previous appeals. The application is justified and indeed required to discourage any continued abuse and to protect the integrity of the process in Revenue cases and appeals. The Morrises and Howell cannot properly be allowed to get away any longer with impunity setting the law and decisions of Commissioners at nought. The Special Commissioners have no power to make wasted costs orders. This court has and can and should in proper cases (and this is one) make such orders to do justice to the Revenue and to remind the practitioners in question (and other like minded practitioners) of their duties to the court.'

[22] As very much a side note, if the merits were so poor, it begs the question, why did Air India not bring the proceedings to an end early, by successfully applying for summary judgment and/or an order striking out the claim. In Patel v Air India Ltd [2010] EWCA Civ 443, counsel for Howells, raised this point. At paragraph 11, Longmore LJ records counsel for Howells as having raised: 'Air India could always have applied to have the action struck out as an abuse of process of the court. No doubt they did not do so because any such application would have been unlikely to have been successful.'

Parties facing a legally aided opponent, can also corresponded with the Legal Services Commission, to highlight any doubts about the legally aid party's case.

[23] In Persaud v Persaud [2003] EWCA Civ 394; [2004] 1 Costs L.R. 1, Peter Gibson LJ then said, at paragraph 41:

'It is striking that in this case the judge, despite the very severe criticisms made by him of the claims on behalf of the sons, nevertheless refused to make a wasted costs order. This case is not, to my mind, the exceptional case where it would be right to interfere with the exercise of discretion by the judge.' 

[24] In Gurney v Randall [2025] EAT 154, Employment Appeal Tribunal ('EAT') on 23.10.25, dismissed an appeal against the refusal of the Employment Tribunal ('ET') to accede to an application for wasted costs against a direct access barrister who had represented an unsuccesful claimant in the ET. The EAT found that the ET had not erred in its (refusal) decision.

Ms Randall (Claimant) brought a claim against: (a) Ms Gurney; (b) Merali's Ltd; and (c) Fordover Services Ltd (together 'Rs'), on the basis she had been employed (i.e. a contract of employment had existed) as a cleaner at Scottish Providence House. Rs resisted, saying variously, the claim: (a) had no prospect of success; (b) was unparticularised; (c) they would seek costs against Ms Randall; and (b) would by seeking a wasted cost order against Ms Randall's direct access barrister Mr Sprack. Following a preliminary issue hearing, on whether Mr Randall was an employee, or self employed, the ET held: (a) Ms Randall was self employed; and so (b) the ER had no jurisdiction in respect to the claim. 

Rs WCO application against Mr Sprack alleged that '...Mr Sprack was negligent, unreasonable, or improper in:

a. Failing to advise the Claimant that her Claims had no reasonable prospect of success;

b. Pursuing an age discrimination on behalf of the Claimant, which was never particularised (and for which it now seems he did not have authority);

c. Failing to advise the Claimant of the costs risks when costs threats were made;

d. Failing to advise the Claimant of the benefit of the offer of settlement made to her or to engage with the rationale for it.' (paragraph 19)

The ET dismissed the WCO application against Mr Sprack. It accepted Mr Sprack's evidence that he had authority from Ms Randall to bring the age discrimination claim (paragraph 15), and 'Mr Sprack included an age discrimination complaint because the claimant suggested that she had been replaced by a younger employee, but failed to particularise the complaint awaiting obtaining further information' (paragraph 15)

At paragraph 22, the EAT set out the law. 

'22. At the time of the judgment the power to make a wasted costs order was provided by Rule 80 Employment Tribunal Rules 2013 (now Rule 78 Employment Tribunal Rules 2024).

80. (1) A Tribunal may make a wasted costs order against a representative in favour of any party (“the receiving party”) where that party has incurred costs—

(a)as a result of any improper, unreasonable or negligent act or omission on the part of the representative; or

(b)which, in the light of any such act or omission occurring after they were incurred, the Tribunal considers it unreasonable to expect the receiving party to pay.

Costs so incurred are described as “wasted costs”.

(2) “Representative” means a party’s legal or other representative or any employee of such representative, but it does not include a representative who is not acting in pursuit of profit with regard to the proceedings. A person acting on a contingency or conditional fee arrangement is considered to be acting in pursuit of profit.

(3) A wasted costs order may be made in favour of a party whether or not that party is legally represented and may also be made in favour of a representative’s own client. A wasted costs order may not be made against a representative where that representative is representing a party in his or her capacity as an employee of that party.

23. The leading authority on wasted costs is Ridehalgh v Horsefield and Another [1994] Ch. 205. The Court of Appeal held:

… courts should apply a three-stage test when a wasted costs order is contemplated. (1) Has the legal representative of whom complaint is made acted improperly, unreasonably 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 legal representative to compensate the applicant for the whole or any part of the relevant costs? (If so, the costs to be met must be specified and, in a criminal case, the amount of the costs.) …

“Improper, unreasonable or negligent” A number of different submissions were made on the correct construction of these crucial words in the new section 51(7) of the Supreme Court Act 1981. In our view the meaning of these expressions is not open to serious doubt.

”Improper” means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.

“Unreasonable” also means what it has been understood to mean in this context for at least half a century. The expression 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.

The term “negligent” was the most controversial of the three. It was argued that the Act of 1990, in this context as in others, used “negligent” as a term of art involving the well known ingredients of duty, breach, causation and damage. Therefore, it was said, conduct cannot be regarded as negligent unless it involves an actionable breach of the legal representative’s duty to his own client, to whom alone a duty is owed. We reject this approach. (1) As already noted, the predecessor of the present Ord. 62, r. 11 made 

reference to “reasonable competence.” That expression does not invoke technical concepts of the law of negligence. It seems to us inconceivable that by changing the language Parliament intended to make it harder, rather than easier, for courts to make orders. (2) Since the applicant’s right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client.

We cannot regard this as, in practical terms, a very live issue, since it requires some ingenuity to postulate a situation in which a legal representative causes the other side to incur unnecessary costs without at the same time running up unnecessary costs for his own side and so breaching the ordinary duty owed by a legal representative to his client. But for whatever importance it may have, we 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:” see Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198 , 218, 220, per Lord Diplock.

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.

24. The Employment Tribunal specifically quoted the sections that are in bold.

25. The Employment Tribunal went on to refer to another decision of the Court of Appeal which further considered the approach to be adopted to the word “negligent”, Persaud v Persaud and Others [2003] EWCA Civ 394, in which it was stated:

I accept Mr Stewart’s submission that there must be something more than negligence for the wasted costs jurisdiction to arise: there must be something akin to an abuse of process if the conduct of the legal representative is to make him liable to a wasted costs order. [emphasis added]

26. The Court of Appeal also gave the following warning:

41. There have been numerous cautionary statements warning against appeals from judges who have refused to make a wasted costs order: see Wall v Lefevre [1998] 1 Fam LR 605 at page 614A to D per Lord Woolf MR and Royal Institute of Chartered Surveyors v Wiseman Marshall [2000] PNLR 649 at page 659B, where Clarke LJ said:

“…it will only be in a very rare case that this court would interfere with a decision by the judge as to whether or not to make a wasted costs order. It must be rarer still that this court will be willing to interfere with a decision of the judge at the first stage.”

In my judgment the good sense of that is obvious. The judge has conducted the trial and will be fully aware of the conduct of the legal representatives in the case before him. It is striking that in this case the judge, despite the very severe criticisms made by him of the claims on behalf of the sons, nevertheless refused to make a wasted costs order. This case is not, to my mind, the exceptional case where it would be right to interfere with the exercise of discretion by the judge. [emphasis added]

27. While in Persaud the Court of Appeal referred to “something akin to an abuse of process” when considering the term negligent other authorities make it clear that this is also a requirement when considering the terms “improper” and “unreasonable”. The position was summarised by Simler P, as she then was, in KL Law Ltd v Wincanton Group Ltd and Another [2018] 5 Costs LO 639

22. As Elias P (as he then was) held in Ratcliffe Duce and Gammer v Binns UKEAT/0100/08, rule 80(1) of the 2013 Rules (or rather its predecessor, rule 48(3) under the earlier Rules) precisely mirrors the definition of wasted costs given in s 51 of the Supreme Court Act 1981. Accordingly, the authorities applicable to wasted costs in civil cases generally, are equally applicable in an employment context. The two leading authorities analysing the scope of s 51 and the circumstances in which wasted costs orders can be made are Ridehalgh and Medcalf v Weatherill and Another [2002] UKHL 27.

23. In Ridehalgh, the court emphasised that the courts should apply a three-stage test when determining whether a wasted costs order should be made. The following three questions should be asked:

(1) Has the legal representative, of whom complaint is made, acted improperly, unreasonably or negligently?

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

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

However, it is clear from both Ridehalgh and Medcalf, as applied in an employment context by Elias P in Ratcliffe, that it is not enough simply to establish negligent or other impugned conduct alone. It is also necessary for a duty to the court (or tribunal) to be shown to have been breached by the legal representative if he or she is to be made liable for wasted costs: see the judgment of Sir Thomas Bingham MR in Ridehalgh, and Medcalf where Lord Hobhouse referred to those observations with approval. In Persaud v Persaud [2003] EWCA Civ 394, the Court of Appeal described this requirement as a need to establish something akin to an abuse of the process of the court.

24. These cases emphasise the importance of not undermining or putting obstacles in the way of a legal representative fulfilling his or her duty to present the lay client’s case in the best way possible, even if it is thought hopeless and even if advice has been given that the case is unlikely to succeed. A wasted costs application inevitably gives rise to the potential for a conflict of interest between a legal representative and the lay client, and legal representatives ought not to be penalised for presenting their client’s case when instructed to do so.

25. Moreover, if the wasted costs application is disputed, save in the most obvious case, whether conduct is unreasonable, improper or negligent is likely to turn on what instructions the client gave and what advice the representative provided. Both are covered by legal professional privilege that can only be waived by the client. Where it is not waived, privilege may make it difficult or impossible for a legal representative to provide a full answer to the complaint made against him or her. Where there is doubt in such cases, the legal representative is entitled to the benefit of that doubt (see Ridehalgh). [emphasis added]

28. Employment Judge Green directed himself with care to the relevant authorities and set out his conclusion clearly and concisely:

81. The wasted costs jurisdiction is not engaged, and the application is dismissed for the following reasons:

a. I do not believe that Mr Sprack acted improperly. The evidence does not point to conduct that would ordinarily be held to justify his disbarment or other serious professional penalty.

b. There is nothing to suggest that Mr Sprack acted unreasonably. He was not acting to harass the other side rather than advancing the resolution of the case. Indeed, there is evidence that he was seeking settlement which would resolve the case. How he communicated and whether he explained the offers to Ms Randall is another matter.

c. I do not think that Mr Sprack acted negligently as understood by the Court of Appeal in Persaud. Mr Sprack was not using the Tribunal process for a purpose or in a way significantly different from its ordinary and proper use. There is no evidence of abuse of process. There were, undoubtedly deficiencies in the service that he provided in the following respects:

i. He did not make Ms Randall aware in his retainer letter that she might be at risk of a costs award against her. There is little evidence that he advised her of the significance of the several cost warning letters that were sent. It was not enough simply to say that the applications would fail. He needed to explain why to enable Ms Randall to make an informed decision about whether to accept the offer.

ii. He advised that there could be an age discrimination claim and acknowledged that this was not particularised. The claim should have been particularised in the ET1 or in separate particulars of claim as required by Chandhok. However, Ms Randall read the claim form and approved it. He should, however, at least have provided further information when it was requested by the other side. Given that the age discrimination claim was not particularised, he could not meaningfully quantify injury to feelings when valued at £8,800.

iii. He did not explain the rationale of the offer to settle for £2,500.

iv. He withdrew the claim against Merali at the open preliminary hearing when he knew that the claim had difficulties as far back as July 2020. He should not have waited until the eleventh hour to withdraw the claim.

d. These deficiencies might amount to negligence in the non-technical sense but following Persaud a higher standard applies to engage the wasted costs jurisdiction.

83. Mr Sprack should not be held to have acted improperly, unreasonably or negligently simply because he acted on behalf of Ms Randall whose claim was doomed to fail. It was his duty to present her case even though he might have thought that it was hopeless and even though he may have advised Ms Randall that it was. Indeed, he believed the case had some prospect of success as set out in his preliminary advice. It was for the Tribunal to judge the merits of the claim. Following Ratcliffe, the notion that a wasted costs order can be made against a lawyer simply because his client is pursuing a hopeless case is entirely erroneous. Such conduct does not of itself demonstrate that the representative has acted improperly or unreasonably. Clients frequently insist on pursuing a case against the best advice of their lawyers.' [bold and underlying in original]

The ET had found that 3 grounds of appeal, against the ET's decision, lacked merit. A key point was that, though the underlying claim may have no reasonable prospects of success '...it remains necessary for there to have been some conduct that is akin to an abuse of process.' (paragraph 31) and the EAT held that there was no 'proper basis' put forward for overturning '...the factual finding of the [ET] that Mr Sprack was not guilty of anything akin to abuse of process.' (paragraph 30)