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In the light of consultees' views, the Working Party recommends that the present
threshold for making wasted costs orders - impropriety, unreasonableness or delay
such as to amount to misconduct on the part of the lawyer in question - should not be
lowered to include negligence which does not amount to misconduct. It recommends
that the present jurisdiction should be extended to cover barristers.
Steps should be taken to reduce the danger of disproportionate satellite litigation being
spawned by the wasted costs jurisdiction. It should be made clear in the rules or
practice directions that :-
(a)
the risk of a wasted costs claim being disproportionate in terms of effort or
expense will be treated as an important negative factor when deciding whether
the relevant lawyer should show cause why he should not have to bear the costs
personally under O 62 r 8(2); and,
(b)
the court will refuse to make a "show cause" order unless on the material before
it there is a clear case which, if unanswered, would justify a wasted costs order:
nebulous or highly arguable allegations likely to lead to disproportionate
satellite litigation should be rejected as a basis for a wasted costs application.
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