Waj Hussain successfully obtains wasted costs order
Waj Hussain was recently instructed by Islan Ali of Simmons & Simmons LLP to obtain an order for a large financial institution'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 legal representatives.
Background
The case involved a Payment Protection Insurance ('PPI') claim based on undisclosed commissions. The claimant failed to attend on the day of trial and a vague 'inability to attend' explanation was proffered by his legal representatives. The claimant's legal representative at the hearing was unable to tell the Court when the last contact with the claimant had occurred, and the Judge opined that the case was possibly being run without proper instructions. Given that the claimant sought to rely on s32 of the Limitation Act in bringing a statute-barred claim which was 8 years out of time, the claimant bore the s32 burden of proof. Since the claimant did not attend, and had not adduced any evidence on the issue in his absence, the claim was dismissed.
The wasted costs hearing
Following the dismissal of the claim, costs were reserved for a Wasted Costs hearing. Despite the claimant's representatives being given an opportunity to file a statement to show why they should not be liable for the costs, no such statement was filed. At the costs hearing, the Judge found all 3 stages of the test in Ridehalgh v Horsefield [1994] EWCA Civ 40 to be satisfied:
- Had the legal representative of whom complaint was made acted improperly, unreasonably or negligently?
- If so, did such conduct cause the applicant to incur unnecessary costs?
- If so, was it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?
Outcome/Conclusion
In this case, costs were awarded to the claimant on the indemnity basis, for a total sum of over £5,200, to be paid by the claimant's solicitors themselves.
These proceedings reinforce the fact that Courts have mechanisms available to them to penalise the solicitors representing a party, as a way of registering their disapproval of the unreasonable or negligent conduct of a case.