Anthony Douglas King & Ors. v Barry Stiefel & Ors.

Wasted costs proceedings are a summary remedy for clear and comparatively straightforward cases. They must remain fair, simple and proportionate, and should be measured in hours rather than days. The jurisdiction is unsuitable for a complex professional-negligence inquiry involving numerous allegations, alternative cases, substantial causation issues and extensive evidence.

A lawyer does not incur wasted costs liability merely because a claim later proves hopeless or is struck out. Where the client has not waived privilege, the court must give the lawyer the benefit of reasonably conceivable doubts about the instructions, available material and advice.

The Kings brought an unlawful-means-conspiracy claim against several defendants. Cockerill J struck out the claim, granted reverse summary judgment and certified it totally without merit: [2021] EWHC 1045 (Comm). The defendants then applied for wasted costs orders against the Kings’ barrister and solicitors.

The issue before Jacobs J was whether those applications should proceed from Stage 1 to a Stage 2 determination.

1. Applications dismissed. The wasted costs applications were not permitted to proceed to Stage 2.
2. The jurisdiction under Senior Courts Act 1981, section 51 and CPR Practice Direction 46 is a summary process. It requires a fair, simple and proportionate procedure.
3. The applications were unsuitable because they involved numerous allegations, alternative cases, substantial causation disputes, complex factual issues, extensive documents and unwaived privilege. A Stage 2 hearing would resemble satellite professional-negligence litigation.
4. The claim’s failure on the merits did not establish improper, unreasonable or negligent conduct. The costs-conspiracy case was arguably pleadable, the threat case involved circumstantial evidence on which reasonable professional judgments could differ, and the CPR 38.7 and abuse-of-process arguments were properly arguable.
5. Because the Kings had not waived privilege, the Respondents were entitled to the benefit of reasonably conceivable doubts about their instructions, advice and available material.
6. The applications also faced substantial causation difficulties. The Kings were determined litigants and might have pursued the litigation without the Respondents’ assistance.
7. The applications were dismissed against both Respondents.

Cockerill J struck out the underlying claim and granted reverse summary judgment: [2021] EWHC 1045 (Comm). Males LJ later dismissed permission to appeal on paper. Jacobs J dismissed the wasted costs applications at Stage 1.