Hunt v Annolight Ltd

A court has power to order a solicitor who faces a wasted costs application to attend for cross-examination where the solicitor has filed written evidence. There is no absolute prohibition. However, cross-examination should be exceptional. It must be justified by fairness and controlled so that the process remains simple, summary and proportionate. Before directing it, the court should ensure that the allegations are clearly defined, the solicitor knows the case to be met, privilege and disclosure issues are addressed, and the proposed questioning is not a fishing expedition. A solicitor must also have a reasonable opportunity to make written or oral submissions, including submissions not foreshadowed in evidence.

John Hunt brought a hearing-loss claim against, among others, Annolight Limited, Double T Glass Limited and Paragon Trade Frames Limited. He was represented by Walker Prestons Solicitors Limited. After the claim was discontinued, the defendants sought costs orders against Mr Hunt and wasted costs orders against Walker Prestons.

Judge Godsmark QC directed that oral evidence be heard, and the parties understood that Walker Prestons’ supervising partner, Mr Sarwar, would attend for cross-examination. Walker Prestons appealed. Saini J dismissed the appeal: [2020] EWHC 3744 (QB). The issue before the Court of Appeal was whether the power to order such cross-examination existed and, if so, whether it was appropriate on the evidence and procedural footing of the case.

1. Appeal allowed. CPR 32.7 gave the court power to direct cross-examination of a solicitor who had filed written evidence in a wasted costs application. There was no absolute rule barring such cross-examination. Ratcliffe Duce and Gammer v Binns UKEAT/100/08 was not followed to that extent. Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd [2012] ICR 305 was approved.
2. The guidance in Ridehalgh v Horsefield [1994] Ch 205, approved by the House of Lords in Medcalf v Mardell [2002] UKHL 27, required wasted costs procedures to remain fair, simple, summary and proportionate. Cross-examination was very much the exception rather than the rule. Stokoe Partnership Solicitors v Grayson [2021] EWCA Civ 626 was distinguished because its concern was pre-emption of questioning at a future trial, whereas no future trial was in prospect here.
3. Before ordering cross-examination, the court had to ensure that the allegations were precisely defined, including the conduct alleged, the causal link to unnecessary costs and the costs claimed. Questioning should test an existing case rather than search for evidence to create one. The court also had to address the scope of the witness statement, legal professional privilege, disclosure and fairness.
4. The allegations against Walker Prestons were inadequately particularised. It was unclear what complaints were made about the Part 18 replies, what matters Paragon relied upon, whether any alleged conduct had caused loss, and what criticism arose from the hearing-protection evidence. Mr Sarwar’s statement was limited and did not address Paragon’s matters. Privilege and possible disclosure issues were unresolved. The evidence did not establish radically different accounts. Cross-examination was therefore unjustified.
5. CPR 46.8(2) entitled Walker Prestons to advance submissions not foreshadowed in evidence and did not require them to file evidence. The possibility of a later order for cross-examination remained open if circumstances changed. Any such requirement should be stated precisely in a formal order.

• Court of Appeal (Civil Division): appeal by Walker Prestons allowed. The direction requiring Mr Sarwar to attend for cross-examination was unjustified, although a later direction was not precluded.
• High Court of Justice, Queen’s Bench Division: Saini J dismissed Walker Prestons’ appeal from Judge Godsmark QC’s order: [2020] EWHC 3744 (QB).
• County Court: Judge Godsmark QC adjourned the wasted costs applications to a hearing at which oral evidence would be heard.