C (A Child) (Wasted Costs), Re

Family practitioners and solicitors must comply strictly and promptly with court orders and must notify listing offices of material changes affecting hearings. A wasted costs order may be made where a legal representative’s conduct involves an improper, unreasonable or negligent act or omission, including failure to act with the competence reasonably expected of ordinary members of the profession. Funding difficulties or a party’s default do not remove the solicitor’s duty to seek directions or an extension of time. The court retains a broad discretion as to costs and may order a proportionate contribution where responsibility is shared.

The father had issued proceedings concerning contact with his child, who had moved to the United States. The proceedings were withdrawn when the parties accepted that the United States District Court in Florida had exclusive jurisdiction and was dealing with the child’s welfare.

The listed English hearing had nevertheless been substantially prepared for. Both parties had failed to comply fully with directions, notification of the changed position was late, and no effective trial bundle had been lodged. The court considered the mother’s application for wasted costs against the father’s solicitors, Duncan Lewis. The central issue was whether the solicitors’ conduct met the statutory and procedural threshold for a wasted costs order.

1. The court emphasised that effective family case management depends upon strict compliance with court orders and timely notification of changes affecting listing and time estimates. Failure may waste court resources and prejudice other court users. The principle was reinforced by Re W, [2013] EWCA Civ 1177, and Re W (A Child), [2013] EWCA Civ 1227.

2. Under section 51(1) of the Senior Courts Act 1981 and rule 28.1 of the Family Procedure Rules 2010, the court has a wide discretion to make such order as to costs as it considers just. Section 51(7) permits a wasted costs order where the conduct of a legal representative involves an improper, unreasonable or negligent act or omission.

3. Applying Ridehalgh v Horsefield, [1994] Ch 205, the court treated negligence in this context as failure to act with the competence reasonably expected of ordinary members of the profession. The relevant failures included late notification of the changed position, failure to seek timely directions or an extension of time, and ineffective lodging of the trial bundle.

4. The explanations offered by the solicitors, including funding difficulties affecting the other party and uncertainty about proceedings in the United States, did not adequately justify the failures. Solicitors must remain assiduous in complying with orders or seek alternative directions. The solicitors’ conduct justified a wasted costs order, although the mother’s legal team also bore some responsibility.

5. Duncan Lewis was ordered to contribute £1,250 or 25 per cent of the mother’s assessed costs of the hearing, whichever was the lesser sum.

First-instance decision. The judgment does not state any prior appellate history.