CJR Final Report, Section 18: Wasted costs

Important public policy considerations have been relied on as grounds for resisting the

imposition of liability for wasted costs on barristers. Similar grounds have been

advanced for upholding barristers' immunity from suit (which a liability for wasted

costs encroaches upon). Such grounds were enumerated in Ridehalgh v Horsefield (at

235) as including :-

"...... the requirement that advocates should be free to conduct cases in court fearlessly,

independently and without looking over their shoulders; the need for finality, so that cases are

not endlessly relitigated with the risk of inconsistent decisions; the advocate's duty to the

court and to the administration of justice; the barrister's duty to act for a client, however

unsavoury; the general immunity accorded to those taking part in court proceedings; the

unique role of the advocate; and the subjection of advocates to the discipline of their

professional bodies."

The Working Party recognizes the importance of these considerations. However, it

does not follow that they justify the total exemption of barristers from any possible

liability for wasted costs incurred as a result of their misconduct. The proper approach

is (as the Bar Association evidently accepts) for these considerations to be given

weight when deciding whether there has been any misconduct and in deciding how the

court's discretion ought to be exercised in any particular case. Sir Thomas Bingham

MR put it as follows :-

"Although we are satisfied that the intention of this legislation is to encroach on the

traditional immunity of the advocate by subjecting him to the wasted costs jurisdiction if he

causes a waste of costs by improper, unreasonable or negligent conduct, it does not follow

that we regard the public interest considerations on which the immunity is founded as being

irrelevant or lacking weight in this context. Far from it. Any judge who is invited to make or

contemplates making an order arising out of an advocate's conduct of court proceedings must

make full allowance for the fact that an advocate in court, like a commander in battle, often

has to make decisions quickly and under pressure, in the fog of war and ignorant of

developments on the other side of the hill. Mistakes will inevitably be made, things done

which the outcome shows to have been unwise. But advocacy is more an art than a science. It

cannot be conducted according to formulae. Individuals differ in their style and approach. It

is only when, with all allowances made, an advocate's conduct of court proceedings is quite

plainly unjustifiable that it can be appropriate to make a wasted costs order against him."

Recommendation 97: Barristers should be made subject to liability for wasted

costs under O 62 r 8.

Notes

Ridehalgh v Horsefield (supra) at 236.