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Secondly, the cases have stressed that the wasted costs jurisdiction should only be
invoked and orders made in clear cases.
(a)
As Lord Woolf stated in Wall v Lefever [1998] 1 FCR 605: "It must be used as a
remedy in cases where the need for a wasted costs order is reasonably obvious."
It is a summary remedy and only to be used where there is "a clear picture" of
the fault of the legal representative.
(b)
The need to restrict the exercise of such power to cases capable of summary
treatment was also emphasised in Harley v McDonald [2001] 2 AC 678, in
relation to the New Zealand courts' inherent jurisdiction to order barristers and
solicitors to pay costs unnecessarily incurred. The Privy Council commented :-
"As a general rule allegations of breach of duty relating to the conduct of the case by a
barrister or solicitor with a view to the making of a costs order should be confined strictly to
questions which are apt for summary disposal by the court. Failures to appear, conduct
which leads to an otherwise avoidable step in the proceedings or the prolongation of a
hearing by gross repetition or extreme slowness in the presentation of evidence or argument
are typical examples. The factual basis for the exercise of the jurisdiction in such
circumstances is likely to be found in facts which are within judicial knowledge because the
relevant events took place in court or are facts that can easily be verified. Wasting the time
of the court or an abuse of its processes which results in excessive or unnecessary cost to
litigants can thus be dealt with summarily on agreed facts or after a brief inquiry if the facts
are not all agreed."
In the Working Party's view, this approach should be adopted when an application is
made under O 62 r 8. The court should refuse to invite the lawyer in question to
"show cause" 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 not be accepted
as a basis for a wasted costs application.
Notes
See also Tolstoy-Miloslavsky v Aldington [1996] 1 WLR 736 at 747 and Fletamentos Maritimos SA v
Effjohn International BV (Unreported, English Court of Appeal, 10 December 1997).
At 703, §50.
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