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These principles should be incorporated in rules of court or practice directions.
Paragraphs 53.4, 53.5 and 53.6 of the CPR's Practice Direction on Costs,
provide a
useful model which should be adopted with suitable adaptations, including elimination
of references to liability on the basis of negligence. Those paragraphs (set out without
modification) provide as follows :-
"53.4
It is appropriate for the court to make a wasted costs order against a legal
representative, only if-
(1)
the legal representative has acted improperly, unreasonably or negligently;
(2)
his conduct has caused a party to incur unnecessary costs; and
(3)
it is just in all the circumstances to order him to compensate that party for the
whole or part of those costs.
53.5
The court will give directions about the procedure that will be followed in each case
in order to ensure that the issues are dealt with in a way which is fair and as simple
and summary as the circumstances permit.
53.6
As a general rule the court will consider whether to make a wasted costs order in two
stages-
(1)
in the first stage, the court must be satisfied-
(a)
that it has before it evidence or other material which, if
unanswered,
would be likely to lead to a wasted costs order being made; and
(b)
the wasted costs proceedings are justified notwithstanding the likely
costs involved.
(2)
at the second stage (even if the court is satisfied under paragraph (1)) the court
will consider, after giving the legal representative an opportunity to give
reasons why the court should not make a wasted costs order, whether it is
appropriate to make a wasted costs order in accordance with paragraph 53.4
above."
Recommendation 94: Rules along the lines of paragraphs 53.4 to 53.6 of the
CPR Practice Direction on Costs, modified to exclude reference to liability
based on negligence, should be issued providing guidance for the exercise of the
court's discretion and discouraging disproportionate satellite litigation in
relation to wasted costs orders.
Notes
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