LatcHMan, R (on the application of) v Secretary of State for the Home Department

A wasted costs order against legal representatives requires a structured three-stage inquiry: whether the representatives acted improperly, unreasonably or negligently; whether that conduct caused unnecessary costs; and whether it is just to order compensation. Conduct is unreasonable where it is vexatious or designed to harass rather than advance resolution, even if motivated by excessive zeal rather than an improper motive. A solicitor’s delay in ending an academic judicial review may be criticised, but the court must assess the representatives’ conduct in all the circumstances. Persistent attempts to obtain instructions and withdraw proceedings may mean that the threshold for a wasted costs order is not met.

The Secretary of State applied for a wasted costs order against Hoole and Co, who represented the claimant in judicial review proceedings concerning removal directions and alleged breaches of Articles 3 and 5 of the European Convention on Human Rights.

The removal directions were cancelled, the claimant completed her examinations, and the practical purpose of the proceedings had fallen away. Hoole and Co nevertheless continued the claim for several months, withdrew it shortly before the substantive hearing, and had difficulty obtaining further instructions from the claimant. The central issue was whether the solicitors’ conduct was unreasonable so as to justify a wasted costs order.

1. Application dismissed. The Secretary of State’s application for a wasted costs order was refused. The judicial review application was also dismissed and the interim order made by Gage J was discharged.
2. The court adopted the three-stage inquiry stated in the White Book: whether the legal representative acted improperly, unreasonably or negligently; whether the conduct caused the applicant to incur unnecessary costs; and whether, in all the circumstances, it was just to order compensation.
3. The Secretary of State relied only on unreasonable conduct. The relevant description was conduct that was vexatious or designed to harass the other side rather than advance resolution. Excessive zeal could satisfy that description even without an improper motive.
4. The court accepted that the claim had become academic after the claimant’s examinations and that Hoole and Co had contributed to the application by pursuing it and failing to keep the Treasury Solicitor informed. However, after receiving formal notice of the wasted-costs risk, the solicitors made repeated efforts to contact the claimant, arranged an appointment, and ultimately withdrew the proceedings when no further instructions were received.
5. Viewed in the circumstances as a whole, that conduct was not unreasonable. The application was therefore dismissed. The order was no order as to costs, save for detailed assessment of the claimant’s legally aided costs.

No appellate history is stated. The judgment records that Gage J had earlier granted an interim order preventing removal until determination of permission or further order.