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

A legal representative who unreasonably or improperly disregards court orders, correspondence and hearing preparations may be ordered personally to pay the costs caused to another party. The power under Civil Procedure Rules 1998, rule 44.14, applies to misconduct before or during the proceedings and is additional to the wasted-costs jurisdiction. An unexplained last-minute withdrawal does not justify an adjournment where the claimant has failed to comply with directions, the claim has become academic, and the other party is ready to proceed. The claim may be dismissed, with costs allocated between the claimant and the solicitor according to the period and cause of the wasted expenditure.

The claimant sought judicial review of the Secretary of State’s decision to grant six months’ discretionary leave to remain rather than indefinite leave or three years’ discretionary leave. Permission had been granted and the claim was listed for a substantive hearing. The claimant and his solicitors failed to comply with directions, respond to correspondence, serve a bundle or skeleton argument, and the solicitors withdrew immediately before the hearing. The claimant had also subsequently received three years’ discretionary leave, rendering the claim largely academic. The central issues were whether the hearing should be adjourned, whether the claim should be dismissed, and whether personal costs orders should be made against the solicitors.

1. Claim dismissed. The claimant’s application for an adjournment was refused. The claimant had failed to comply with case-management directions, had not served a skeleton argument or trial bundle, had not responded to repeated correspondence, and had only sought an adjournment after his solicitors withdrew at the last moment. The later grant of three years’ discretionary leave also made the claim academic or substantially academic.
2. Under Civil Procedure Rules 1998, rule 44.14, the court may order a party’s legal representative personally to pay costs caused by unreasonable or improper conduct before or during proceedings. The rule extends beyond the party’s own conduct and operates in addition to the power to make wasted-costs orders under section 51 of the Senior Courts Act 1981 (paras 25–26).
3. The solicitors’ prolonged silence, disregard of court directions and correspondence, failure to protect the hearing fixture, and unexplained last-minute withdrawal constituted a paradigm case of unreasonable and improper conduct. The solicitors were ordered to pay the defendant’s and counsel’s costs incurred from 20 January 2012 through the hearing, on an indemnity basis, subject to assessment if not agreed (paras 27–28).
4. The claimant was ordered to pay the defendant’s costs incurred before 20 January 2012 on the standard basis, subject to assessment if not agreed. The detailed assessment procedure in Civil Procedure Rules 1998, Part 47, was accepted as providing an adequate timetable (paras 31, 36 and 45).

The judgment describes permission being granted by Collins J on 14 September 2011 and the claim subsequently being listed for a substantive hearing. No appellate decision is stated.