[2007] EWHC 2441 (Admin)

Before the court will order a legal representative, whether solicitor or barrister, to pay another party’s wasted costs, it must be satisfied that:

  1. the legal representative has acted improperly, unreasonably or negligently;
  2. the legal representative’s conduct caused the other party to incur unnecessary costs; and
  3. it is just, in all the circumstances, to order the legal representative to compensate the other party for the whole or part of the relevant costs.

In this case, the judge found that the solicitor advocate had behaved unreasonably and negligently in pursuing completely unnecessary judicial review proceedings on behalf of her client. However, he refused to make an order for wasted costs against her because he was satisfied that there was a significant risk that such an order would lead to her bankruptcy.

Comment: the judge concluded that when considering the third limb of the test, it was permissible for him to consider the effect the order would have upon the lawyer against whom it was sought because the order was a punitive sanction. He considered the effect of such a order upon her would be a disproportionate consequence of her conduct. This point has not come up before in cases concerning applications for wasted costs and it is perhaps doubtful whether the lawyer’s financial circumstances alone can be good reason for refusing to make an order where it would otherwise have been appropriate.