Jovicic & Ors v The Serbian Orthodox Church-Serbian Patriarchy

A wasted costs order is a summary remedy to be exercised carefully and only where the case is clear. The court should ask whether the legal representative acted improperly, unreasonably or negligently, whether that conduct caused unnecessary costs, and whether it is just to order compensation. A solicitor remains professionally responsible for exercising independent judgment and cannot rely blindly on counsel’s advice. Persistently issuing and purporting to serve proceedings after expiry of the claim forms, without taking effective steps to regularise service, may exceed mere negligence. A wholly unarguable jurisdictional case may likewise justify a wasted costs order. English law recognises neither a general forum of necessity nor universal jurisdiction.

The claimants brought six abuse claims against the Serbian Orthodox Church-Serbian Patriarchy. The claims concerned events in Serbia, Bosnia-Herzegovina and Croatia, involving claimants and alleged loss outside England and Wales. The claim forms were issued on 8 January 2019, but were not validly served within the four-month period. The court had previously set aside the claim forms for want of jurisdiction and declared service invalid.

The defendant then sought an order requiring Kesar & Co, the claimants’ solicitors, to pay its wasted costs. The central issues were whether the solicitors’ conduct concerning service and jurisdiction was improper, unreasonable or negligent, whether it caused unnecessary costs, and whether a costs order was just.

1. Outcome. Kesar & Co were ordered to pay the defendant’s costs of the jurisdiction applications on the indemnity basis from 27 December 2018.
2. The applicable approach was the three-stage inquiry: whether the legal representative acted improperly, unreasonably or negligently; whether that conduct caused unnecessary costs; and whether it was just to order compensation. The jurisdiction must be exercised with care and only in a clear case.
3. The failure to serve the claim forms in time was more than a mere negligent oversight. The applications to extend time were made after expiry, were not properly progressed, and were effectively abandoned after the listed hearing was vacated. Kesar & Co took no effective steps to regularise service before the defendant’s strike-out application. The conduct continued to the hearing and permitted no reasonable explanation.
4. The jurisdictional case was wholly unreasonable and negligent. The Serbian Patriarchy was domiciled in Serbia and had not been, and could not be, personally served in England and Wales under the applicable provisions. No permission to serve out was sought or obtainable because there was no good arguable case within the relevant jurisdictional gateways. The reliance on a supposed forum of necessity, the interests of justice, or universal jurisdiction was misconceived. English law recognised none of those general concepts.
5. Privilege and counsel’s involvement did not alter the result. A solicitor must exercise independent professional judgment and is not entitled blindly to follow advice. The late attempt to formulate a different service case under CPR 6.9(2), CPR 6.15 or CPR 6.16 was unsupported by the contemporaneous correspondence and no relevant application had been made.
6. The conduct caused the defendant’s costs. Those costs would have been incurred even if fresh proceedings had been issued because Kesar & Co continued to resist the jurisdiction challenge. It was just to order payment of the entirety of the relevant costs, particularly as the defendant had no realistic prospect of recovering them elsewhere.