Costs generally follow the event in England and Wales. Simply put, this mean that in litigation, the loser will usually pay the winner’s legal costs. This principle is seen as an important safeguard, indemnifying rightful parties and dissuading hopeless and vexatious litigation.
However, what happens when you lose and are ordered to pay costs, but the reason you lost was the incompetence of your legal representative?
The answer could be the wasted costs order.
Section 51(6) of the Senior Courts Act 1981 allows the court to make an order that a legal representative pay any wasted costs in the proceedings. Section 51(7) defines wasted costs as:
any costs incurred by a party (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.
The bar for wasted costs orders is high. Courts are reluctant to make these orders for fear that it may cause a conflict of interest between legal representatives and their clients. Further the standard of conduct has to be very poor to justify a wasted costs order. Simple negligence is not enough, it must amount to negligence that is so severe that it amounts to a breach of the legal representative’s duty to the court.
However, despite the high bar, wasted costs orders are still made. Practical examples of behaviour that has attracted wasted costs orders include:
- acting without the instructions of a client;
- failing to advise a client that their case is hopeless (although simply pursuing a hopeless case on a client’s instructions will not qualify);
- missing deadlines and time limits
- making allegations against an opponent without supporting evidence.
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Have you been subject to professional negligence or misconduct at the hands of a legal representative?
Get in touch today on 0800 988 7756.
