Most costs disputes are between the parties. A wasted costs application is different. It is directed at a legal representative.
That makes it serious.
A wasted costs order may be sought where it is alleged that costs have been incurred because of improper, unreasonable or negligent conduct by a solicitor, counsel or other legal representative. The application may arise from the pursuit of a hopeless point, procedural default, inadequate preparation, failure to comply with court orders, defective evidence, late abandonment of a case, or conduct said to have caused unnecessary costs.
These applications are not ordinary costs arguments. They carry professional, reputational and sometimes personal consequences. They need to be approached with care, restraint and forensic discipline.
I advise and appear in wasted costs applications, both for applicants and for legal representatives resisting such applications.
Why wasted costs applications matter
A wasted costs application can change the focus of the litigation. Instead of asking who won or lost between the parties, the court is asked to examine whether the conduct of a legal representative caused costs to be wasted.
For applicants, the jurisdiction may offer a route to recovery where the other side’s conduct has caused unnecessary expense and where it is said that responsibility lies with the lawyers rather than the client alone.
For respondents, the application may be professionally uncomfortable and potentially serious. It may involve criticism of litigation judgment, case preparation, advice, advocacy, procedural conduct or tactical decisions. It may also raise questions about privilege, instructions, confidentiality and professional obligations.
The court will not make a wasted costs order simply because a legal representative lost an argument, advanced a case which failed, or acted for a difficult client. Litigation involves judgment. Advocacy involves risk. The question is whether the conduct complained of crosses the relevant line, whether it caused identifiable costs to be wasted, and whether it is just to make the order.
When I am instructed
I am instructed in cases involving:
- Threatened wasted costs applications;
- Applications against solicitors;
- Applications against counsel;
- Allegations of improper, unreasonable or negligent conduct;
- Procedural defaults and non-compliance with court orders;
- Late amendments, adjournments or abandoned applications;
- Pursuit of allegedly hopeless claims or defences;
- Disclosure failures;
- Defective witness evidence or expert evidence;
- Failure to prepare properly for hearings;
- Costs thrown away by legal representatives’ conduct;
- Privilege and confidentiality issues;
- Professional negligence overlap;
- Professional liability insurers;
- Appeals from wasted costs decisions.
These applications may arise during proceedings, after an interim hearing, at trial, after judgment, or at the consequentials stage.
Acting for applicants
A wasted costs application should not be made lightly. It is a serious application and the court will expect it to be properly particularised, properly evidenced and properly limited.
The applicant will usually need to identify:
- The legal representative against whom the order is sought;
- The conduct complained of;
- Why that conduct is said to be improper, unreasonable or negligent;
- The costs said to have been wasted;
- The causal link between the conduct and the costs;
- Why it is just to make the order.
A vague complaint that the other side’s lawyers behaved badly is not enough. Nor is disappointment at the result. The application must identify the act or omission, the costs consequence, and the basis on which the representative should be ordered to pay.
I advise applicants on whether a wasted costs application is worth making, how to frame the allegation, what evidence is needed, whether the application is proportionate, and whether it is likely to advance or distract from the client’s real interests.
Acting for respondents
For a solicitor or counsel facing a wasted costs application, the first task is to identify precisely what is alleged.
Is the complaint about negligence, unreasonableness, impropriety, poor judgment, tactical conduct, breach of an order, defective evidence, or something else? What costs are said to have been wasted? What is the causal link? Is the application properly particularised? Does it rely on inference rather than evidence? Does it trespass into privileged or confidential material?
A respondent may have strong answers. The decision may have been a proper litigation judgment. The case may have been arguable. The relevant conduct may have been the client’s decision rather than the lawyer’s. The costs may have been incurred in any event. The application may be tactical, exaggerated or procedurally defective.
I advise solicitors, counsel and professional liability insurers on resisting wasted costs applications. A careful response is usually better than an indignant one. The court will be concerned with evidence, causation, fairness and the proper limits of professional responsibility.
Improper, unreasonable or negligent conduct
The language of wasted costs applications can sound broad, but it should not be used loosely.
Improper conduct suggests conduct which is a serious departure from what the court is entitled to expect. Unreasonable conduct may involve conduct which no reasonable legal representative would have adopted in the circumstances. Negligent conduct may require consideration of whether the representative acted with the competence reasonably expected of the profession.
In practice, the question is often more fact-sensitive than abstract. What did the lawyer know? What instructions were given? What was the procedural position? What was the state of the evidence? What was the time pressure? What options were realistically available? Was the decision made at the time defensible, even if it later proved wrong?
A wasted costs application should not be used to impose liability for every forensic misjudgment. But where conduct has plainly caused unnecessary costs, the jurisdiction may be important.
Hopeless cases and hopeless points
A common allegation is that a lawyer advanced, maintained or failed to abandon a hopeless case or point.
That allegation requires care. A point may be difficult without being hopeless. A case may be weak without being improper to run. A lawyer may be entitled, and sometimes obliged, to advance a client’s arguable case. The fact that the argument failed does not prove that it should never have been made.
The real questions are usually:
- When did the point become unsustainable?
- What material was available at that time?
- What advice was given?
- What instructions were received?
- Did the lawyer cause the costs complained of?
- Would the costs have been incurred anyway?
I advise both applicants and respondents in cases where wasted costs are sought on the basis that a claim, defence, application or argument should not have been pursued.
Procedural defaults
Wasted costs applications may arise from missed deadlines, failure to comply with orders, late evidence, defective disclosure, adjournments, abandoned applications or hearings which could have been avoided.
These applications often turn on causation. It is not enough to identify default. The applicant must show what costs were wasted by that default and why the legal representative should be made responsible for them.
For respondents, it may be necessary to show that the default did not cause the costs claimed, that the costs would have been incurred in any event, that the responsibility lay elsewhere, or that the order sought is disproportionate.
I advise on wasted costs applications arising from procedural failures and case management issues.
Privilege, instructions and confidentiality
Wasted costs applications often create difficult problems about privilege and confidentiality.
A legal representative may wish to explain that they acted on instructions, gave appropriate advice, or were constrained by the client’s decisions. But the representative may not be able to disclose privileged material without consent. The applicant may seek documents or explanations which the respondent says cannot properly be given.
This can create a hard tactical problem. A respondent may be criticised for not answering an allegation fully, while being unable to answer it without revealing protected material.
I advise on privilege, instructions and confidentiality in wasted costs applications, including how to frame a response where there are limits on what can properly be disclosed.
Professional negligence and insurance overlap
A wasted costs application is not the same as a professional negligence claim, but the two may overlap.
An allegation that costs were wasted because of negligent conduct may later give rise to, or sit alongside, a professional liability issue. Professional indemnity insurers may need to consider notification, coverage, defence strategy, settlement and whether the wasted costs application creates wider risk.
I advise in cases where wasted costs, professional negligence and professional liability insurance issues intersect.
The important point is to identify the nature of the allegation early. A wasted costs application is summary in character. It should not become a substitute for a full professional negligence claim unless the facts and procedure justify that course.
Timing and procedure
A wasted costs application should be properly timed and properly framed.
If made too early, the court may lack the material needed to decide it fairly. If made too late, there may be objections based on delay, fairness or procedural prejudice. If made without proper particulars, the respondent may not know the case they have to meet.
The application should identify the conduct relied upon, the costs said to have been wasted, the causal connection, and the order sought. The evidence should be focused. The court will not welcome a generalised attack on the other side’s lawyers.
I advise on the timing, procedure and evidence required for wasted costs applications.
Appeals
Wasted costs orders may be appealed, but the grounds need to be carefully framed. The decision may involve evaluation, discretion, procedural fairness and the court’s assessment of conduct.
An appeal may require an error of principle, inadequate reasons, procedural unfairness, failure to apply the proper test, failure to identify causation, or a conclusion outside the range properly open to the court.
I advise on appeals from wasted costs decisions, including prospects, grounds of appeal, permission and the commercial or professional value of appealing.
Who I act for
I am instructed by solicitors, counsel, professional liability insurers, commercial parties, costs lawyers, claimants and defendants.
I act both for applicants seeking wasted costs orders and for legal representatives resisting them. That dual perspective is useful. These applications are tactical, sensitive and fact-specific. Understanding how the allegation will be made, and how it will be answered, is often central to deciding whether the application should be pursued or resisted.
What to send when instructing me
When seeking advice on a wasted costs issue, it is helpful to send:
- The pleadings;
- The relevant orders;
- The application or draft application;
- The judgment or transcript, if available;
- The conduct complained of, identified as precisely as possible;
- The correspondence relied upon;
- Any relevant witness statements or evidence;
- The costs said to have been wasted;
- Any schedule of costs;
- Any attendance notes or documents which can properly be disclosed;
- Any relevant professional negligence or insurance correspondence;
- The hearing date or deadline;
- A short chronology;
- A short note identifying the real allegation.
A wasted costs application should be specific. A short note identifying the conduct complained of, the costs said to have been wasted, and the causal link is often essential.
Instructing me
I am often instructed where a wasted costs application is threatened, contemplated or made, or where a solicitor, counsel or insurer needs early advice on the risks arising from alleged litigation conduct.
These applications should be handled carefully. They are not ordinary costs disputes. They can affect money, reputation and professional relationships.
For availability, fee arrangements and urgent enquiries, please contact my clerks at Hailsham Chambers.