Brown and Another v Bennett and Others (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 16 November 2001 |
| Date | 16 November 2001 |
| Court | Chancery Division |
Chancery Division
Before Mr Justice Neuberger
Costs - wasted costs order - power to make order against any lawyer in the proceedings
The court had power to make a wasted costs order against any lawyer in the proceedings and not only against the legal representative of the party making the wasted costs application.
The liability of a barrister for a wasted costs order was not limited to his conduct of the proceedings in court, but extended to his involvement in acting or advising on the proceedings in any connection, including his involvement in drafting or settling any document in the proceedings.
An application for a wasted costs order was to be determined by reference to the question of whether, but for the conduct complained of, the costs in question would, on the balance of probabilities, have been incurred.
Mr Justice Neuberger so held in the Chancery Division when dismissing a wasted costs application made against Mr David Oliver, QC, Mr Nicholas Asprey, Mr Timothy Evans and Abrahamson & Associates, counsel and solicitors of Graham and Edwina Brown, claimants in an action for fraud, breach of fiduciary duty and negligence.
The wasted costs applications was made by the defendants to that action, Maurice and Michael Bennett, Vivian John Walter Scott, Peter Anthony Richard Evans, David Peter Sarson, Stephen Kane (the Oasis defendants), Apa Partners and Co Ventures Ltd, Apa Ventures III, Apa Ventures III International Partners LP (the Apa defendants).
Section 51 of the Supreme Court 1981, as substituted by section 4(1) of the Courts and Legal Services Act 1990, provides:
"(6) In any proceedings … the court may disallow, or (as the case may be) order the legal or other representatives concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.
"(7) In subsection (6), 'wasted costs' means 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…
"(13) In this section 'legal or other representative', in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf."
Ms Barbara Dohmann, QC and Mr Robert Anderson for the Oasis defendants; Mr Richard Slowe, solicitor and Mr Paul Stanley for the...
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