Martin Ferguson succeeds in obtaining a Wasted Costs Order

Martin Ferguson was recently instructed by Kevin Perkins of Plexus Law to obtain an order for the defendant’s wasted costs on the indemnity basis as a result of what a judge called ‘improper, unreasonable or negligent conduct’ on the part of the claimant’s representative.

The case, a straightforward infant approval, had become protracted due to the claimant’s representative’s failure to inform the court of the investment type nature of a child trust fund for which it sought the damages to be paid in to. The judge had been unaware that capital was at risk and found that the court had been misled in this regard, even if, inadvertently.

When the defendant subsequently applied for additional directions from the court, the claimant opposed the application on the basis that it had ‘no basis and [was] unfounded in law’. The court held that stance to be ‘decidedly unhelpful to a proper application’.

A show cause order was made compelling the claimant’s representative to produce a witness statement as to why they ought not pay the defendant’s costs personally. Having taken that statement into account, the court found that the claimant’s representative’s failure to inform the court of the investment type nature of the account and their decision to then ‘aggressively oppose’ the defendant’s application for additional directions crossed the threshold for a wasted cost order to be made.

Having then considered Plexus Law’s attempts to conclude the matter without further satellite litigation, the court found that the claimant’s solicitor’s conduct in failing to engage in those attempts to be ‘so far out of the ordinary’ that it justified indemnity costs.

Whilst wasted costs orders are unusual, particularly in cases involving the approval of damages, this matter serves as a reminder that there remains an onus, which is enshrined within the CPR, for the parties to be co-operative and show a willingness to be collaborative to resolve unusual situations which will arise in civil litigation from time-to-time.

Where co-operation is replaced with obstruction, wasted costs orders remain a powerful tool at the courts’ disposal; in this case, the damages were agreed at just £6k and wasted costs ordered at over £4k.

Martin practices across the core areas of expertise at Farrar’s Building, with a particular focus on personal injury, insurance and clinical negligence matters. Please contact our Clerks for further information.

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