Kirsty Williams-Henry v Associated British Ports & Anor (Wasted Costs Order Judgment)

A wasted costs order is a summary, compensatory jurisdiction. The applicant must identify sufficiently particular improper, unreasonable or negligent conduct, prove that it caused specified wasted costs, and show that an order would be just and proportionate.

A legal representative is not liable merely because the client pursued a hopeless or unsuccessful case, including one funded by a conditional fee agreement. Where privilege has not been waived, the court must give the legal representative the benefit of reasonable doubt. Continuing to represent a client facing an allegation of fundamental dishonesty is not, without more, unreasonable or negligent.

The Defendant sought a stage 1 wasted costs order against the Claimant’s former solicitors in a personal injury claim. The Claimant’s claim had been dismissed for fundamental dishonesty under Criminal Justice and Courts Act 2015, section 57.

The Defendant alleged failures concerning disclosure, witness statements, advice, settlement and termination of the retainer. The Claimant had not waived privilege over advice or instructions. The central questions were whether the allegations disclosed a prima facie case of improper, unreasonable or negligent conduct, whether any such conduct caused identifiable wasted costs, and whether continuation to a second-stage hearing would be proportionate and just.

1. Application dismissed. The Defendant failed to establish a prima facie case of unreasonable or negligent conduct, save that the October 2022 witness statement gave rise to a prima facie issue concerning the failure to correct an apparent conflict with known facts.
2. The wasted costs jurisdiction under section 51 of the Senior Courts Act 1981 and CPR rule 46.8 is summary, fair and proportionate. The applicant must particularise the alleged conduct and identify the allegedly wasted costs, at least in general terms. The two-stage procedure may be rolled up where appropriate.
3. The relevant conduct must be improper, unreasonable or negligent. Unreasonable conduct requires more than an unsuccessful result or a different judgment by another lawyer. Negligence is understood untechnically as failure to act with the competence reasonably expected of ordinary members of the profession. A hopeless case is not, without more, improper, unreasonable or negligent.
4. Privilege materially constrained the Respondent’s ability to explain advice and instructions. The court therefore assumed that the solicitors acted on instructions and gave them the benefit of reasonable doubt. The application could not properly become a professional negligence action requiring detailed examination of the solicitors’ file.
5. There was no sufficient prima facie case concerning disclosure or settlement. The evidence did not establish that the solicitors were improperly or negligently advised to reject offers, nor that they were required to terminate the conditional fee retainer when fundamental dishonesty was alleged. Continuing to represent an injured client who wished to pursue an arguable claim was a human and commercial decision, not a professional obligation for the court to second-guess.
6. The October 2022 statement issue did not establish causation. The Defendant did not identify the costs allegedly wasted or prove that the statement caused them. The application was also too wide-ranging, insufficiently particularised and disproportionate. A stage 1 order was therefore not evidentially supported, appropriate or just.