Mach, R (on the application of) v Secretary Of State For the Home Department

A wasted costs order against a legal representative requires more than improper, unreasonable or negligent conduct. Under section 53.4 of the CPR Practice Direction, that conduct must have caused a party to incur unnecessary costs, and an order must be just. Causation is an essential condition. Where the conduct caused no loss, the court cannot make a wasted costs order, even if unreasonable conduct might otherwise be established.

The appeal concerned a £400 wasted costs order made by Blofeld J against the solicitors acting for an asylum-seeker in pending judicial review proceedings. The claimant and his dependent family voluntarily left the United Kingdom, but the solicitors delayed withdrawing the claim until they were satisfied that the departure was voluntary.

The judge found that the solicitors had acted unreasonably by asking the court to vacate the hearing without clearly stating that the application would be withdrawn. The central issue before the Court of Appeal was whether that conduct had caused the respondent to incur unnecessary costs.

1. Appeal allowed. Lord Justice Rix delivered the first judgment and Lord Justice Aldous agreed.
2. The applicable wasted-costs provision, section 53.4 of the CPR Practice Direction, requires three conditions: the legal representative must have acted improperly, unreasonably or negligently; that conduct must have caused a party to incur unnecessary costs; and it must be just to order compensation. The causation requirement is essential.
3. The judge below had declined to find improper or negligent conduct, but had found unreasonable conduct in the solicitors’ letter of 31 October 2000. The Court of Appeal did not need to determine whether that finding was justified, or whether the judge’s additional reasoning concerning earlier contact with the Treasury Solicitor was sound.
4. Even assuming unreasonable conduct, it had caused no loss. The solicitors had told the Treasury Solicitor that the judicial review application would be withdrawn. The Treasury Solicitor had communicated that letter to the court, so the court was informed of the intended withdrawal. The hearing nevertheless proceeded because the Treasury Solicitor maintained its own application for wasted costs. The solicitors’ conduct therefore did not cause the costs of that hearing.
5. The wasted costs order of £400 was set aside. There was no order as to the costs of the appeal.

1. Court of Appeal (Civil Division) allowed the appeal and set aside the £400 wasted costs order.
2. High Court of Justice, Queen’s Bench Division, Administrative Court (Blofeld J) made a wasted costs order against the claimant’s solicitors on 1 November 2000.