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The court in Ridehalgh v Horsefield also agreed that applications should generally
only be made at the end of the proceedings, pointing to the opposite danger to that
mentioned by Sir John Donaldson, namely, that an application at the interlocutory
stage might cause the lawyers concerned to stop acting in the matter, depriving their
client of the representation of his choice.
In the Working Party's view, appropriate measures aimed at preventing intimidatory
misuse of the wasted costs jurisdiction should be adopted in rules of court or practice
directions. This arises both in relation to the making of an application to the court for
wasted costs proceedings to be started against the other side's lawyers and to
threatening wasted costs proceedings beforehand.
In relation to the making of applications to the court, adoption of Recommendation 94
should go a long way towards excluding unfounded or poorly particularised
applications made with a view to intimidation. The court would give such
applications short shrift (and order suitable penalties against the applicants) where the
applications are plainly made without evidence or other material which, if
unanswered, would be likely to lead to a wasted costs order being made.
Additionally, in line with the dicta cited above, it ought to be laid down as a general
rule that applications for wasted costs orders against lawyers for opposing parties
should not be made until the conclusion of the relevant proceedings.
As to the threatening of such proceedings, a rule should make it clear (i) that it is
improper to threaten wasted costs proceedings with a view to pressurising or
intimidating the other party or his lawyers; and (ii) that any party who wishes to put
the other side's lawyers on notice of a potential claim for wasted costs against them
should refrain from doing so unless he is able, when doing so, to particularise the
misconduct of such lawyers which is alleged to be causing him to incur wasted costs
and to identify the evidence or other materials relied on in support.
Notes
At 238.
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