High Court sends message with wasted costs order
The High Court has made a wasted costs order against a firm of solicitors it held mainly culpable for the “sorry state of preparation” a case was in before it was withdrawn.
Mr Justice Cobb was ruling in Re C (A Child) (Wasted Costs) [2015] EWHC 3259 (Fam), which followed his granting a father permission to withdraw his applications in a contact dispute over his son because a court in the US already had jurisdiction over the case.
Cobb J said both parties had failed to comply with case management directions, while “the father had failed to file his final evidence”, and there had only been very late warning that what was listed for a three-day hearing would likely not be fully effective. The court also received no trial bundle for the hearing.
He ordered that the father’s solicitors, Duncan Lewis, should contribute £1,250 or 25% of the assessed costs of the mother of the hearing, whichever was the lesser sum.
“The effective management of family cases before the courts depends upon strict compliance by parties with court orders: orders are orders. Court time is precious, and the efficient administration of the court lists in the Royal Courts of Justice (as elsewhere around the country) depends upon parties, and where represented, their solicitors, conscientiously advising the listing offices of changes in time estimates.
“This is a case in which failures to comply with court orders, and to notify the listing office of change of circumstances, led to extensive court time being allocated and preserved for this case unnecessarily, most likely to the detriment of other families whose cases need urgent consideration.
“It is in this context that I regarded it as necessary to consider the question of wasted costs. Given that the mother’s legal team were, in my judgment, at least partially responsible for the failures, I limited my consideration only to a portion of their costs.”
Cobb J said he was satisfied that the explanations offered by Duncan Lewis “do not adequately or satisfactorily account for the failures… and I consider that therefore the mother, and the court, have been put to additional cost in the preparation for the hearing. As earlier indicated, both sides appear to have paid somewhat casual regard to the strict requirements of the order. Whether difficulties in complying with court orders arise out of funding difficulties or otherwise, solicitors must be assiduous in ensuring compliance, or seeking specific alternative direction from the court.”
High Court allows limited separate representation of co-claimants
A mother and her children who were separately represented as claimants in a long-running case are entitled to the costs of two sets of solicitors up to a point, the High Court has ruled.
Mr Justice Morgan found that, though there was a “strong argument” that having separate representation was irregular, it was justifiable up to November 2012 because their interests were not identical, but he said they were aligned thereafter.
The case related to a trust and ownership of a house, with the substantive ruling handed down in June 2015. Ruling in Ong & Ors v Ping [2015] EWHC 3258 (Ch), Morgan J found that the mother (Jane) and the children were co-claimants, rather than joint claimants, because they were not pursuing a cause of action vested in them jointly.
However, he continued, “on the assumption that the conduct of Jane and the children in this respect was irregular, any such irregularity was waived by the defendant, insofar as it was a matter for the defendant alone, rather than for the court”.
The claimants instructed joint counsel and so the separate representation by solicitors “did not impact in any way on the conduct of the trial or otherwise on the conduct of the proceedings”, up to the question of costs, at least. At the same time, Morgan J said that, had the claimants applied for an order permitting separate representation, he would have refused it.
The judge said that, where the receiving parties were separately represented, the court would give them the opportunity to explain why the costs of this were reasonably incurred, and that it need not be left to the costs judge – here he considered himself better placed to make the decision.
Outlining the guiding principles in such a situation, he added: “If the court considers that the costs of separate representation exceeded what was reasonably necessary to present the claimants’ case and protect their interests, then the court will conclude that the additional costs (in excess of the costs which would have been incurred if the claimants had instructed a single firm of solicitors) were not reasonably incurred and those costs will be disallowed.”
The defendant argued that, for the period when there should have been joint representation, the claimants should only be allowed to recover the costs of instructing either one firm or the other, but not both.
Morgan J said: “I do not think that can be right in view of the likelihood that not all of the work done by those two firms was duplicatory. I will not make a finding as to the extent of the duplication but, in view of what I was told as to the division of the work between them, if I were to disallow the entirety of the costs charged by one of the firms, I would prevent the claimants recovering costs which were necessary for them in order to conduct the litigation.”
He ordered the costs judge to determine the costs which would have been incurred if the claimants had used one firm of solicitors. “On the basis of the submissions made to me, it is likely and certainly possible, that the costs recoverable will involve the addition of some of the costs incurred by Stephenson Harwood to some of the costs incurred by Isadore Goldman [solicitors for the children and the mother respectively].”
As to how the costs recovered would be divided between the claimants, the judge said it would be better to decide this after the detailed assessment.
“It would be wrong of me to decide anything on this point in the absence of argument but a possible preliminary approach would be to distinguish between charges for work which was not duplicated and charges for work which was duplicated. In the case of the former, it would seem right that the costs which are allowed for that work by one solicitor should be regarded as receivable by the client of that solicitor. As regards the latter category, it will be necessary to apportion that cost between the claimants.”