A Father v A Mother

A wasted costs order requires proof of an improper, unreasonable or negligent act or omission by a legal representative, a direct causal link to identifiable costs wasted by a party, and a judicial decision that an order is appropriate. Negligence is assessed non-technically by reference to the competence reasonably expected of an ordinary legal professional. The court must give the representative a fair opportunity to respond and must specify the costs caused by the conduct. Solicitors remain responsible for properly and promptly instructing counsel, preparing the case and complying with court directions. Failure to do so may justify a wasted costs order where it causes a listed hearing to be lost.

The father applied for the summary return of two children to Nigeria. A three-day hearing was listed to determine habitual residence, alleged wrongful removal and related factual issues. The hearing could not proceed because the mother’s solicitors had not properly prepared the case or ensured that counsel was instructed and available.

The father sought recovery of the costs wasted as a result. The issue was whether the solicitors’ conduct satisfied the statutory and procedural requirements for a wasted costs order and, if so, what costs were directly caused by that conduct.

1. Application granted. The court ordered Burnham Law to pay the entirety of the father’s counsel’s costs for the lost three-day hearing, the father’s reasonable travel and accommodation costs, and the costs of counsel’s work and attendance on the wasted-costs application, with interest.
2. Under Supreme Court Act 1981, section 51(6) and (7), and Civil Procedure Rules 1998, rule 46.8, the court applied the three-stage approach identified in Ridehalgh v Horsefield and Watson v Watson (Wasted Costs Order) [1994] 2 FLR 194: whether there was improper, unreasonable or negligent conduct; whether it caused costs to be incurred; and whether the court should exercise its discretion to make an order and, if so, for what sum.
3. The court applied the guidance in Re A Barrister (Wasted Costs Order) [1993] QB 293, including the need for a simple but fair procedure, a clear complaint, an opportunity to respond and specification of the sum ordered. Negligence is assessed non-technically, by asking whether the representative acted with the competence reasonably expected of an ordinary legal professional.
4. The court also applied Medcalf v Mardell [2003] 1 AC 120. A wasted costs order should be made only exceptionally where legal professional privilege prevents a practitioner from giving a full answer, unless the court is satisfied that no unconstrained answer could resist the order and that it is fair to proceed. The solicitors had been given a sufficient opportunity to respond.
5. Burnham Law knew that the hearing remained listed and that new counsel was required, but failed to contact chambers, brief counsel, prepare the trial and witness bundles, provide witness contact details, comply with the directions of 4 December, or respond adequately to the mother. Those failures amounted to negligence and, in expecting counsel to instruct replacement counsel, unreasonable conduct.
6. A direct causal link existed between the solicitors’ failures and the inability to proceed with the hearing. Only costs directly caused by that conduct were recoverable. The father’s attendance costs were recoverable because his principal purpose in travelling was to give evidence at the listed hearing.