Khan, R (on the application of) v Special Adjudicator & Anor

For the wasted-costs jurisdiction under section 51(7) of the Supreme Court Act 1981, negligent conduct is assessed in an untechnical way. It means failing to act with the competence reasonably expected of ordinary members of the profession. It does not require an actionable breach of duty to the client. Solicitors who know of a forthcoming hearing must make reasonable efforts to secure suitable counsel. Vacation conditions do not reduce that standard. Approaching only four chambers over more than a week may be insufficient, particularly where other counsel could have been approached.

The proceedings arose from a renewed application for permission to seek judicial review in an asylum case. The applicant’s solicitors knew on 7 August 2000 that the matter was listed for hearing on 16 August. They did not file further supporting material or secure counsel, although they approached four chambers and obtained counsel only 24 hours before the hearing.

Hale LJ made a wasted-costs order nisi against the solicitors on 18 August 2000, allowing Mr Emezie an opportunity to explain the circumstances. He challenged the order, principally arguing that the statutory requirements had not been met. The central issue was whether the solicitors’ conduct fell below the standard reasonably expected for the purposes of the wasted-costs jurisdiction.

1. Application refused. The Court of Appeal confirmed the wasted-costs order nisi made by Hale LJ under sections 51(6) and 51(7) of the Supreme Court Act 1981. Leave to appeal was refused.
2. Applying Ridehalgh v Horsefield [1994] Ch 205, the court held that negligent conduct in this context is failure to act with the competence reasonably expected of ordinary members of the profession. The concept is untechnical. It does not require proof of an actionable breach of duty to the client, since the wasted-costs jurisdiction concerns the legal representative’s duty to the court.
3. The solicitors had notice of the hearing for more than a week. In those circumstances, reasonable solicitors should have made further efforts to obtain counsel. Approaching four chambers did not exhaust the potential supply, and the later availability of counsel at 24 hours’ notice supported the conclusion that counsel could have been secured in time.
4. The fact that the hearing took place in August did not excuse the failure. Solicitors involved in litigation know that fewer counsel may be available during that month and must act accordingly. The failure to make further enquiries fell below the standard of a reasonably competent solicitor.
5. The respondent’s attendance was also reasonable because the judge’s indication might have enabled the matter to be disposed of at the hearing. Hale LJ was therefore entitled to exercise the wasted-costs jurisdiction.

• Queen’s Bench Division (Administrative Court): The underlying matter concerned an asylum application for judicial review before Sullivan J. No citation or outcome for that decision is stated.
• Court of Appeal (Civil Division): On the renewed permission hearing, Hale LJ made a wasted-costs order nisi against the applicant’s solicitors on 18 August 2000.
• Court of Appeal (Civil Division): The challenge to that order was refused. The order was confirmed and leave to appeal was refused.