F, R (on the application of) vHead Teacher of Addington High School & Ors

A wasted costs order may be made where legal representatives place a materially misleading application before the court and their failure to meet the ordinary professional standard causes unnecessary expense, even though deliberate impropriety is not established. An absence of dishonest intention does not prevent a finding of negligent or unacceptable professional conduct. The court must identify the conduct causing the costs and determine whether those costs should properly be borne by the legal representatives rather than the opposing party.

The claimant sought judicial review concerning his permanent exclusion from school and the local education authority’s alleged continuing breach of its duty under section 19 of the Education Act 1996 to provide suitable education. Permission was granted on the section 19 ground. The claimant later sought to withdraw the claim, while the local education authority applied for dismissal and a wasted costs order against his solicitors.

The authority argued that material correspondence and the claimant’s attendance at an alternative educational establishment had been omitted from the permission application. The central issue was whether the solicitors’ conduct justified a wasted costs order.

1. The claim was dismissed. Ashok Patel were ordered to pay the local education authority’s costs occasioned by the claim under section 19 of the Education Act 1996, including the costs of the hearing, subject to detailed assessment if not agreed.

2. The court held that the permission application presented a wholly misleading picture by omitting correspondence showing repeated attempts to arrange suitable education and evidence that the claimant was attending CACFO, an establishment recognised as providing suitable education. Had that material been disclosed, permission would have been refused because there was no arguable breach of the statutory duty.

3. The relevant conduct was not improper in the specialised sense required for a wasted costs order because the court accepted that there was no intention to mislead. Nevertheless, the solicitors’ standard of work fell substantially below that expected of an ordinary member of the profession.

4. The solicitors’ failure to reach an acceptable professional standard caused the authority to incur expense which it should not have been required to bear. That causal connection justified the wasted costs order under section 51(6) of the Supreme Court Act 1981 and rule 48.7 of the Civil Procedure Rules 1998.

Not stated in the judgment.