Wasted costs where no adjudication

B v Pendlebury and another QBD NLJ 12 July p1072)

Para 53.6 of the Costs Practice Direction requires the court to consider whether to make a wasted costs order in two stages: (1) the court must be satisfied (a) it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order; and (b) the wasted costs proceedings are justified notwithstanding the costs involved; (2) give the legal representative an opportunity to give reasons why the court should not make a wasted costs order. The phrases in the Practice Direction ‘simple and summary as the circumstances will permit’ and ‘after giving a legal representative an opportunity to give reasons’ did not lend themselves as appropriate to a disputed trial involving consideration and resolution of complex and disputed evidence. In the present case there was the added practical difficulty that no court had yet pronounced any decision in relation to the underlying facts of the case between the solicitors and the defendants. For the claimant had been represented under a legal aid certificate which was discharged, and shortly thereafter she had obtained by consent an order of discontinuance. As a consequence the defendants obtained an order for costs against the claimant and now sought a wasted costs order against her solicitors. In the absence of an adjudication of the primary facts the court should be even more resistant to a motion that it should inquire into the state of affairs in which it had no solid foundation from which the process of analysis essential to the wasted costs procedure could proceed. It was axiomatic that a solicitor was bound by the instructions of his client. He was not obliged to act as a filter between the instructions provided by the client and the opposing party. Quite simply, a solicitor owed no duty to the opposing party, although he did, of course, owe such a duty to the court. It would therefore be quite wrong if the court were to allow the present application to proceed any further whether to the first or second stage envisaged in the Costs Practice Direction.