Wasted costs order after stay

Wagstaff v Colls and another (CA TLR 11 April; SJ 17 April p419)

The proceedings between the claimant and the defendants had been settled and stayed on terms contained in a Tomlin order. Nevertheless the proceedings remained extant. The action following a stay remains technically in being. The action cannot proceed or resume its active life without an order of the court, but it cannot properly be regarded as dead in the same way as an action which has been dismissed or discontinued by order. There is no need to lift the stay in order to pursue a wasted costs application against solicitors. The effect of the terms of the Tomlin order had been to put a halt to the claimant’s action. There is nothing to prevent an application for a wasted costs order being made and entertained after a final order has been made and perfected entering judgment for or against the claimant. That served to emphasise the free-standing nature of the application for wasted costs. There was no reason for proceedings concluded by compromise to be treated differently.