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18.4
Pressurising the opposition
The foregoing discussion has proceeded on the assumption that a party may obtain a
wasted costs order not merely against his own lawyers, but against those acting for the
other side in the proceedings. Applications to that end have generally been the focus
of concern regarding satellite litigation. There is no doubt that the court has
jurisdiction to make such orders. Such power was held to exist as part of the inherent
jurisdiction of the court: Myers v Elman [1940] AC 282. Order 62 r 8(1)(c) expressly
empowers the court to direct the solicitor personally to indemnify other parties to the
litigation against costs payable by them. And the power has recently been confirmed
in the context of the English rules and statute in Medcalf v Mardell [2002] 1 AC 120.
The existence of such a jurisdiction will inevitably tempt some litigants to invoke or
threaten to invoke it without proper foundation with the intention of pressurising or
intimidating the lawyers on the other side. This would obviously be wrong, as
recognized by the English Court of Appeal in Orchard v South Eastern Electricity
Board [1987] QB 565, where Sir John Donaldson MR stated :-
"Whilst there can be no objection to an application under Ord 62, r 8 at the conclusion of a
hearing, given appropriate facts, it is quite another matter where such an application is
threatened during or prior to the hearing. Objectivity is a vital requirement of professional
advisers. Hence, for example, the rejection of contingency fees and the impropriety of a
solicitor acting for co-defendants. Threats to apply on the basis that the proceedings must fail
not only make the solicitor something in the nature of a co-defendant, but they may well, and
rightly, make him all the more determined not to abandon his client, thereby losing a measure
of objectivity."
This was supported by the Court of Appeal in Ridehalgh v Horsefield while drawing a
distinction between intended intimidation and giving fair warning :-
"We entirely agree with the view expressed by this court in Orchard v South Eastern
Electricity Board [1987] QB 565 that the threat of proposed applications should not be used
as a means of intimidation. On the other hand, if one side considers that the conduct of the
other is improper, unreasonable or negligent and likely to cause a waste of costs we do not
consider it objectionable to alert the other side to that view; the other side can then consider
its position and perhaps mend its ways. Drawing the distinction between unacceptable
intimidation and acceptable notice must depend on the professional judgment of those
involved."
Notes
At 577-8.
[1994] Ch 205 at 237-8.
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