High Court

Published date01 August 1997
DOI10.1177/002201839706100301
Date01 August 1997
Subject MatterHigh Court
HIGH
COURT
WASTED COSTS ORDERS IN EX PARTE PROCEEDINGS
RVCamden LBC, ex p Martin
The judgment
of
Sedley Jin R v Camden LBC, ex p Martin
[1997]
I All
ER 307 is based on the distinction between the rules governing an award
of costs and those which govern an order for wasted costs. The
consequence of that distinction is that a person who may have attended
court (even in a case in which he has been invited by the court to do so)
and thereby may have suffered loss by way
of
a quantifiable waste of costs
owing to the solicitors' 'improper, unreasonable or negligent' conduct may
find that he is unable to obtain a wasted costs order. In that case, a local
authority, purporting to act pursuant to its obligation under Part III of
the Housing Act 1985, offered the applicant certain premises which she
considered unsuitable. She appealed from that decision offering further
evidence, but the local authority declined to reconsider the matter on the
basis
of
the evidence offered. She applied to the court for judicial review,
but on the eve of the hearing her counsel advised her to withdraw her
application for judicial review (it being discovered that the applicant's
daughter, whose asthma had been stated to be the reason why a third or
fourth floor flat was unsuitable, was in fact not living with her mother).
Next day, the court gave leave to withdraw the application, but the local
authority, which had attended the hearing, applied for a wasted costs
order in its favour. On adjournment, to consider whether a wasted costs
order would be appropriate, it was submitted that such an order was not
within the court's jurisdiction, as the local authority was not 'a party to
the proceedings', which were by way of an ex parte application.
In the ordinary way, the question raised by an application for a wasted
costs order will be limited to asking whether the legal adviser's actions,
which caused wasted costs came within the terms authorising that order:
see Ridehalgh v Horfield
[1994]
Ch 205. Here, that was not the question
on which the case was decided, but the court, on giving its decision on the
real issue, added that, had it been called on to decide that issue, it would
have held that it was the conduct of the solicitors which had caused the
local authority's loss and that that conduct warranted the making of an
order in a normal case. The second question, however, was whether the
local authority was a party in whose favour an order could be made. By
s
51
of the Supreme Court Act 1981, it is provided that the term 'wasted
costs' means any costs incurred by a party; and by s
151
the term 'party'
is stated to 'include' 'any person who pursuant to or by virtue
of
rules of
court or any other statutory provision has been served with notice of, or
has intervened in, those proceedings'. Here, the local authority could not
claim to come within any
of
those provisions.
Nor
could they be said to
be 'intervening', within the meaning of that term in the statute. Their
appearance at the hearing was voluntary, albeit by leave
of
the court,
227

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