Persaud & Anor v Persaud & Ors

A barrister’s failure to address the legal merits of a claim may support a prima facie case of negligence for the purposes of a wasted costs application. That conclusion cannot ordinarily be attributed to the barrister’s instructions where the alleged failure concerns legal issues which the barrister should have addressed. The absence of instructions or conference notes may be material in some cases, but it does not prevent consideration of an alleged failure to deal with the law. Where the issue has not been fully argued, the proper course may be to list the permission application inter partes, with the appeal to follow if permission is granted.

Two sons brought proceedings against their father, his company and their third brother, alleging reliance on promises which had been repudiated. The action was dismissed after trial. The judge found that the sons were not credible and held alternatively that their claim could not succeed in law.

The father then sought a wasted costs order against the barrister who had advised and represented the sons. The judge dismissed the application at the first stage and refused permission to appeal. Permission was also refused on the papers, and the father renewed the application before the Court of Appeal. The central issue was whether the barrister’s apparent failure to address the legal defects in the claim disclosed a prima facie case within the wasted costs jurisdiction.

1. The application was directed to proceed inter partes, with the appeal to follow if permission was granted. It was to be heard by a three-judge court, including a Chancery Lord Justice.
2. Sir Martin Nourse held that, if the claimants’ case was hopeless in law and the barrister ought to have known that, there was a prima facie case of negligence within the interpretation of the wasted costs test in Ridehalgh v Horsefield [1994] Ch 205.
3. The judge below had treated the absence of the barrister’s instructions and conference notes as preventing a conclusion that the advice was negligent. That approach could not explain an apparent failure to deal with the legal points, whatever the instructions contained. Instructions and conference notes might be material in some cases, but they were not necessarily relevant to an omission to address legal defects.
4. The Court of Appeal did not determine whether the father could rely on any other ground. Nor did it grant permission immediately, because the defendants had previously mounted but not pursued an application to strike out the claim as demurrable, and the issue required full argument on both sides.

Lord Justice Ward agreed with Sir Martin Nourse.

1. Court of Appeal (Civil Division): the renewed permission application was directed to proceed inter partes, with the appeal to follow if permission was granted.
2. Mayor’s and City of London Court: His Honour Judge Simpson dismissed the wasted costs application at the first stage on 28 August 2001 and refused permission to appeal.
3. Permission on the papers: Lord Justice Clarke refused permission on 31 May 2002.