Gupta v Comer

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date24 October 1990
Judgment citation (vLex)[1990] EWCA Civ J1024-4
Date24 October 1990
Docket Number90/0948

[1990] EWCA Civ J1024-4





Royal Courts of Justice


The Master of the Rolls

(Lord Donaldson)

Lord Justice Balcombe

Lord Justice Taylor


Mr. V. Gupta
Mr. C. Comer

MR. PATRICK ROCHE (instructed by Messrs. Saunders & Co.) appeared for the Appellants (Messrs. Saunders & Co.).

MR. DAVID ELLIS (instructed by Messrs. Batemans, Bovingdon, Herts.) appeared for the Respondent (Mr. Gupta).


This is an appeal by Mr. Comer's solicitors against an order by His Honour Judge Dobry Q.C., sitting in the Bloomsbury County Court, that they be personally responsible for paying Mr. Gupta's costs of and occasioned by an application for an adjournment on 27th January 1989 and his costs of the action from 2nd May 1989 up to and including a hearing before Mr. Recorder Simpson held on 26th May 1989, such costs to be taxed on an indemnity basis.


The judge purported to exercise the jurisdiction of the court under R.S.C. Order 62 Rule 11, as applied to the County Court by C.C.R. Order 38 Rule 1(3), to make an order for costs against a solicitor personally where "costs have been incurred unreasonably or improperly in any proceedings or have been wasted by failure to conduct proceedings with reasonable competence and expedition".


By their notice of appeal the solicitors contended that, notwithstanding the terms of R.S.C. Order 62 Rule 11, there was no jurisdiction to make such an order unless the court found that the conduct complained of amounted to a serious dereliction of the solicitor's duty and that no such finding had been made. Further or alternatively they contended that on the evidence their conduct of the proceedings could not properly be characterised in terms falling within the wording of the rule.


This first contention raised issues of far reaching importance, irrespective of the facts of this particular appeal. Notwithstanding the very helpful argument adduced by Mr. Roche, of counsel, appearing for the solicitors, we concluded that the first ground of appeal could not be upheld and so indicated. Mr. Roche then turned to the second ground of appeal upon which we felt it right to call upon Mr. Ellis, of counsel, appearing for the respondent, Mr. Gupta, to argue in support of the decision of the judge on the facts. Shortly before Mr. Ellis would have concluded his submissions on this aspect and we would have invited Mr. Roche to reply, Mr. Roche intervened to say that, in the light of our indication that we were against him on his first contention as to the judge's jurisdiction, his solicitor clients did not wish to pursue the appeal further and would not resist its dismissal, the costs of the appeal to be taxed on the standard basis. After hearing Mr. Ellis, who unsuccessfully sought costs on an indemnity basis, we indicated that we would dismiss the appeal with costs, but that in view of the general importance of the submission going to the jurisdiction of the court, we would take time to put our reasons for rejecting it into writing. This we now do.


Myers v. Elman (1940) A.C. 282 is authority for the proposition that in the exercise of its inherent or common law jurisdiction over solicitors, as officers of the Supreme Court, the court should not make a costs order against a solicitor in his capacity as such, unless it was satisfied that the conduct which gave rise to those costs being incurred could properly be described as "a serious dereliction of duty as a solicitor, either by himself or his clerks" (per Viscount Maugham at page 292), "gross negligence" (per Lord Atkin at page 304) or "a gross neglect" (per Lord Wright at page 319). Order 65 Rule 11 of the Rules of the Supreme Court then in force was treated as being intended to provide machinery for the exercise of this inherent jurisdiction (see per Viscount Maugham at page 289).


The Rules of the Supreme Court then in force had been made in 1883. A new rule (Order 62 Rule 8) was introduced in 1961, the wording of which was altered in October 1966. All these rules were stated in the commentary contained in successive editions of the Supreme Court Practice to be intended to provide machinery for the exercise of the inherent jurisdiction of the court. The courts in exercising the jurisdiction proceeded on the same basis in the sense that, regardless of the precise wording of the rule for the time being in force, they required that an applicant seeking an order for costs against a solicitor should prove a serious dereliction of duty, gross negligence or gross neglect (see Orchard v. South Eastern Electricity Board (1987) 2 W.L.R. 102 and the cases there cited) thus applying the law as stated in Myers v. Elman (supra).


On 28th April 1986 a new rule was introduced in place of Order 62 Rule 8, this being the existing Order 62 Rule 11. The original decision in Orchard's case was made on 18th March 1985 and accordingly it was Order 62 Rule 8 which was applicable, notwithstanding that it reached the Court of Appeal in November 1986. I need not reproduce Order 62 Rule 11 since it is readily available in the current Supreme Court Practice. Suffice it to say that its wording differs from that of its predecessor in that it introduces references to "reasonable competence and expedition" and omits references to "misconduct or default" which featured in all the previous rules.


This new rule fell to be considered by this court (May L.J. and Waite J.) in Sinclair-Jones v. Kay (1988) 2 All E.R. 612 where it was held that the Myers v. Elman criteria were not applicable to the new rule. May L.J. at page of 616 put it this way:—

"In my opinion, where it is only the inherent jurisdiction of the court which is invoked, then the principles laid down in such cases as Myers v. Elman still apply. However, I think that Order 62 Rule 8 was amended to become the present Order 62 Rule 11 in order to widen the court's powers in cases which fall properly within the rule. It is noteworthy that Order 62 Rule 28 gives taxing masters similar wide powers, substantially wider than the powers they possessed by virtue of the predecessor Order 62 Rule 8(6). The present Rule 28 gives them the appropriate powers, both in relation to the substantive proceedings as well as in the taxation proceedings themselves; before the amendment their powers extended only to the taxation proceedings.

The present Order 62 Rule 11 refers to costs incurred unreasonably or improperly or wasted by the failure to conduct proceedings with reasonable competence and expedition. What is unreasonable or reasonable, as the case may be, must depend on the circumstances of each case, and I have no doubt that courts will bear in mind the difficulties inherent in conducting litigation and on occasions in keeping to the relevant time limits. Nevertheless, the existence of unreasonable delay is perhaps the principal criticism which is made of the conduct of litigation today, and in my view it is the duty of all concerned to do all they can to eliminate it.

In my opinion, therefore, the principles requiring gross misconduct laid down in the older authorities are not applicable where there is an application to the court under the modern Order 62 Rule 11. This must be given its ordinary English meaning, and the courts must consider whether or not the particular conduct complained of is within the terms of the rule."


Essentially therefore this court was holding that, unlike its predecessors, the new rule was free-standing and was not intended merely to be machinery for the exercise of the court's inherent jurisdiction.


So matters stood until this court (Lord Lane C.J., Lloyd and Stuart-Smith L.JJ.) gave judgment in Holden & Co. v. C.P.S. (1990) 1 All E.R. 368. The issue was whether in ordering solicitors personally to pay costs incurred in Crown Court proceedings, the court had to be satisfied that the conduct of the solicitors constituted a serious dereliction of duty, i.e. the Myers v. Elman (supra) criteria applied. The rules of the Supreme Court had no application since the order under appeal had not been made in the High Court or County Court but in the Crown Court. To this extent it was anomalous that appeal should have lain to the Civil rather than to the Criminal Division of this...

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    • 27 March 1991 be said. The first is that, if the registrar did not do so, he was correct in the light of the subsequent decision of this court in Gupta v. Comer (1991) 2 W.L.R. 494 and the fact that the application for costs was not made in the context of the inherent jurisdiction of the court over s......
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    ...Interbulk Ltd., [1986] A.C. 965; [1986] 2 All E.R. 409; [1986] 2 Lloyd's Rep. 117; (1986), Sol. Jo. 429, followed. (2) Gupta v. Comer, [1991] 1 Q.B. 629; [1991] 1 All E.R. 289; [1990] T.L.R. 687; (1990), 140 New L.J. 1606, followed. (3) Skinner (ne Ball) v. Myles, 1990 JLR 98, considered. A......
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    ...the law as we believe it to have been laid down in the previous decision of the House of Lords." 67 Although the Court of Appeal in Gupta v. Corner [1991] 1 QB 629 did not follow Holden, regarding Lord Lane's reasoning as obiter insofar as it related to civil proceedings, it did not questio......
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1 books & journal articles
  • The Wasted Costs Jurisdiction
    • United Kingdom
    • The Modern Law Review Nbr. 64-1, January 2001
    • 1 January 2001
    ...Butterworths,1999) chapter 11.2 As far as the inherent jurisdiction is concerned, see Myers vElman [1940] AC 282.3 See Gupta vComer [1991] 1 All ER 289.4 There are alternative grounds of improper or unreasonable conduct.5 [1994] Ch 205.6 Some 68 cases in all. Section 4 of the Courts and Leg......

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