In two recent cases, the Supreme Court imposed costs on solicitors for wasting court time. These orders indicate that the judiciary is actively taking steps to penalise lawyers personally for acts and omissions that prevent the courts from dealing with litigation efficiently – whether that failure results from unstateable pleas, or failure to adhere to court rules and practice directions.
The courts have long had jurisdiction to penalise lawyers for wasting court time. InMylard v Weldon, 1596 , the court not only made a wasted costs order against a lawyer whose pleadings were too long, but ordered that he be paraded around the courts barefoot with the pleadings hung around his neck.
While the more colourful aspect of that jurisdiction has probably withered, the courts retain the power to make solicitors personally liable for wasted costs, even if they have rarely made such orders. Two recent decisions suggest a change of approach.
The Impetus for Change
Talbot v Hermitage Golf Club concerned the alleged building of a golf handicap. It consumed 183 days of court time between the High Court and in the Supreme Court.
The Chief Justice stated:
"…I consider that the Courts would benefit by a further development and use of case management so that the best use may be made of scarce court resources for the benefit of all litigants.” In a lecture given in March 2015, one of the Supreme Court judges who had heardTalbot identified it as the impetus for change, stating:
"The only viable way to cut down the issues to what is sensible, is for a party who is not burdened with a vested interest in pleading every possible cause of action to take the tough decisions. In our system, that person is going to have to be the judge.”
Recent Costs Orders - A Change in Judicial Approach?
Delaney and McGrath express the view that:
“It can be seen, therefore, that while the jurisdiction … [to make a wasted costs order against a solicitor] confers a useful power which can serve to deter wasted costs and to compensate a client and, possibly, an opposing party where this occurs, there is a very high threshold that has to be satisfied for its application and it is only in the very clearest of cases where serious misconduct or gross negligence is manifest that it will be appropriate to make such an order.”
Two recent Supreme Court wasted costs orders against solicitors indicate that this threshold has reduced:
An order was made where a hearing was deferred, as a result of a failure to comply fully with a practice direction regarding the preparation of a core book of authorities. There was no suggestion of serious misconduct, or gross negligence and full books of authorities had been prepared. The omission was in relation to core books.
Costs were imposed, for making an application “which was, as ultimately conceded, bereft of any legal basis”. The court held that this was worsened by the application not being withdrawn immediately after the other side’s submissions were delivered, thereby “failing to obviate wasteful use of the time and energy” of the court.
An increased focus by the courts on the efficient disposal of litigation, with the likely consequent reduction in legal costs is to be broadly welcomed. Wasted costs orders are, however, likely to cause some anxiety amongst the profession and could have a chilling effect if overused.
While amended rules of court with increased case management powers are being prepared, recent wasted costs orders indicate that the courts are now willing to use the tools available to them to deliver such efficiency.