Snowden v Ministry of Defence

On a detailed assessment of legally aided costs, wasted costs may include costs properly incurred before a solicitor’s later negligence rendered the underlying litigation worthless. The court must ask whether, in light of that later omission, it is unreasonable to expect the assisted client or the Legal Services Commission to pay those costs. A striking-out order for want of prosecution does not automatically justify disallowing all costs. The court should consider whether the delay was attributable to the client rather than the solicitor. A rehearing is unnecessary where the existing material establishes that the solicitor was wholly responsible for the delay and provides no basis for a different costs order.

Solicitors appealed against a deputy High Court judge’s dismissal of their appeal from a costs judge. The costs judge had disallowed all their costs, apart from disbursements, under regulation 109 of the Civil Legal Aid (General) Regulations 1989. The solicitors had acted in a personal injury claim by a former soldier against the Ministry of Defence. The claim was struck out for inordinate and inexcusable delay, which the costs judge attributed to the solicitors’ employees.

The solicitors had not attended the detailed assessment hearing because of a mistaken belief that it had been postponed. The central issue was whether a rehearing should be ordered and whether the material disclosed any basis for allowing some of the costs.

1. Appeal dismissed. The costs judge had considered the available working papers and there was no useful purpose in remitting the matter for rehearing.
2. Regulation 109 required wasted costs to be disallowed or reduced on the detailed assessment of an assisted person’s costs. By virtue of section 51(7) of the Supreme Court Act 1981, wasted costs included costs incurred because of a representative’s improper, unreasonable or negligent act or omission, and costs which it was unreasonable to expect the party to pay in light of an omission occurring after the costs were incurred.
3. Sir Murray Stuart-Smith identified three relevant categories: costs caused by the opponent’s representative; costs caused by the party’s own representative; and costs properly incurred when incurred but later rendered unreasonable to pay because of the representative’s subsequent omission.
4. The present case fell within the third category. Work undertaken before the negligent delay could have been properly incurred at the time, but the subsequent failure to prosecute the action diligently meant that the work provided no benefit in the litigation. It could therefore be unreasonable to expect the Legal Services Commission to pay for it.
5. A striking-out order does not automatically mean that all solicitors’ costs must be disallowed. The court should consider whether the delay was attributable to the client, for example through failure to give instructions. No material suggested that Mr Snowden was responsible. The costs judge had found that the delay was wholly caused by inexcusable inactivity by the solicitors’ employees.
6. Chadwick LJ agreed, emphasising that the approach in Kilroy v Kilroy concerned a different category of wasted-costs application and did not assist in the present solicitor-and-client assessment.

• Court of Appeal (Civil Division): [2001] EWCA Civ 1524 — appeal dismissed.
• High Court of Justice, Queen’s Bench Division: deputy judge dismissed the solicitors’ appeal from the costs judge’s decision.
• Costs judge: disallowed the solicitors’ costs except for disbursements under regulation 109 of the Civil Legal Aid (General) Regulations 1989.