Nwoko v The Oyo State Government of Nigeria

Solicitors who remain on the record must accept service of applications and other proceedings relating to the litigation. Refusal to do so may justify a wasted costs order where the conduct is improper, unreasonable or negligent and causes costs to be incurred.

The applicant must provide evidence identifying the costs wasted and linking them to the deficient conduct. A court cannot assess wasted costs by applying an unsupported percentage to a substantial schedule. Where the evidence is incomplete, the court may make a realistic summary assessment based on the direct costs shown, while avoiding recovery for costs attributable only to excessive or disproportionate conduct.

The claimants applied for a wasted costs order against their opponent’s solicitors, CNA Solicitors Limited. CNA had remained on the record but refused to accept service of an application notice concerning the defendant’s failure to cooperate in the appointment of an arbitrator.

Mr Justice Popplewell had previously found a strong prima facie case of improper, unreasonable or negligent conduct and ordered CNA to show cause. The matter came before Eder J to determine whether a wasted costs order should be made and, if so, the appropriate amount.

1. Wasted costs order. CNA’s refusal to accept service while acting as solicitors on the record was an unacceptable position. Solicitors on the record are obliged to accept service of applications and other proceedings relating to the proceedings in which they act. The conduct justified a wasted costs order.
2. Evidence of causation and amount. A party seeking wasted costs must identify, with proper evidence, which costs were caused by the deficient conduct. It is not permissible simply to place a large schedule before the court and invite it to apply an unsupported broad-brush percentage. Some estimation may be necessary, but the assessment must remain principled and connected to the actual conduct.
3. Assessment. The direct costs incurred up to the hearing before Popplewell J were assessed at £2,000. Further costs were caused by CNA’s decision to contest the issue and by the preparation and consideration of the witness statement. The claimed figure for that later period was excessive and insufficiently broken down. Applying a realistic view of the underlying dispute and the overriding objective, the later costs were assessed at £5,000.
4. Order. CNA was ordered to pay £7,000, inclusive of VAT, by way of wasted costs.

The judgment records earlier procedural steps in the same proceedings. On 27 June 2014, Eder J ordered the appointment of an arbitrator and directed the defendant to cooperate. On 3 September 2014, Popplewell J appointed an arbitrator and ordered CNA to show cause why a wasted costs order should not be made. The present judgment determined the wasted costs application.