Ogiehor v Ogiehor

A court may make a wasted-costs order where conduct is improper, causes unnecessary costs, and makes compensation just. A litigant in person ordinarily remains subject to the same procedural rules, although lack of representation may matter at the margin where the relevant obligation is inaccessible or the disadvantage could not reasonably be overcome. Disclosure of a settlement communication marked without prejudice can be improper despite incomplete legal understanding, particularly after express warnings. Continuation of proceedings may be made conditional on an interim payment if the condition is realistically capable of compliance. The court must consider the party’s means, potential sources of funds, the substantive case, prior failures, costs incurred and time allowed.

The appellant brought a personal injury claim in which liability had been admitted and a trial on damages was listed. During the trial, while acting in person, he disclosed the contents of a settlement letter marked without prejudice, despite warnings from the judge and the respondent’s representatives. The judge adjourned the trial, ordered the appellant to pay the respondent’s wasted costs, and made continuation of the claim conditional on an interim payment of £10,000. The order was later varied to allow six months for payment. The appellant did not challenge the adjournment, but appealed against the costs order and the payment condition. The central issues were whether his conduct justified the costs order and whether the condition was lawful and realistically capable of compliance.

Appeal dismissed.

1. Wasted costs. Section 51(6) of the Senior Courts Act 1981 and CPR rule 44.2 supplied the relevant jurisdiction. The court applied the three-stage test in Ridehalgh v Horsefield [1994] Ch 205: whether the conduct was improper, unreasonable or negligent; whether it caused unnecessary costs; and whether it was just to order compensation.
2. Litigant in person. The ordinary procedural standard is not lowered merely because a party is unrepresented. The status may matter at the margin, particularly where the rule is unusually inaccessible or the disadvantage could not reasonably have been overcome. The appellant had been expressly warned not to disclose the letter, and repeated efforts had been made to stop him. His conduct was therefore improper, even if he lacked a developed understanding of the without-prejudice rule. It caused substantial unnecessary costs, and it was just that he should bear them. The court distinguished Sang Kook Suh and another v Mace (UK) Ltd [2016] EWCA Civ 4 on that basis.
3. Payment condition. CPR rule 3.1(3) and (5) permitted the court to make continuation of the proceedings conditional on payment into court. The condition had to be capable of compliance. The court had to consider all the circumstances, including the substantive case, previous failures, costs already incurred, the party’s means and the possibility of raising money from others. A condition that was difficult to satisfy was not necessarily impermissible, but one that was impossible would be. The judge had considered those matters, set a sum below 10% of the respondent’s accrued costs, and allowed a lengthy period for payment.
4. The court added that, in future cases, it would be preferable for a litigant in person to give sworn evidence about means and the possibility of raising the required sum rather than rely on assertions from the well of the court.

• Court of Appeal (Civil Division) dismissed the second appeal and upheld the costs order and payment condition: [2018] EWCA Civ 2423.
• Central London County Court, HHJ Cryan, adjourned the damages trial, ordered payment of wasted costs, and made continuation conditional on payment. The order was subsequently varied by Leggatt J to require £10,000 within six months.