Williams-Henry v Associated British Ports
This case provides a useful reminder on the importance of carefully considering the basis of any potential Wasted Costs Order application; ensuring the ‘wasted costs’ are clearly defined and calculated, that evidence is provided in support, and that any application is proportionate to the amount of potential wasted costs.
Background of the case:
Williams-Henry v Associated British Ports [2024] EWHC 2415 (KB), Mr Justice Ritchie
The Defendant applied for a wasted costs order against the Respondent firm of solicitors who had acted on behalf of the Claimant in a personal injury claim.
The Claimant had sustained a moderately severe brain injury as a result of falling off a Pier and sued the Defendant owner/ occupier of the Pier. Partial liability was admitted and the case proceeded to Trial on quantum, where the Defendant asserted fundamental dishonesty. After the Trial the Court found that the Claimant had been fundamentally dishonest, and dismissed the claim with costs ordered against the Claimant, unenforceable up to the level of the assessed “honest” damages, of just under £600,000. As the Defendant’s costs were capped at a sum lower than the “honest” damages, the Defendant would recover no costs from the Claimant and therefore applied for a stage 1 notice to show cause towards a Wasted Costs Order.
In support of their Application the Defendant asserted that the Respondent had failed to collect and analyse relevant documents that showed that the Claimant was being dishonest; the Respondent had maintained the litigation because the matter was funded under a CFA; that the Respondent had failed to make reasonable attempts to settle at a low sum; and had failed to terminate the retainer when the pleaded case was “hopeless”.
Summary:
The Court dismissed the Defendant’s application. The Applicant failed to prove that the Respondent’s conduct had been unreasonable or negligent. The Claimant needed representation, it was for the Judge not the lawyer to decide whether the claim was valid, and it was the Claimant’s choice to consider whether to continue her claim, not the lawyer’s. Although CFA funding puts more pressure on Solicitors to terminate retainers in claims involving assertions of Fundamental Dishonesty, the fact that the Respondent did not terminate the contract once this had been raised, was in fact indicative of the firm’s humanity, rather than negligence or unreasonableness.
Furthermore, the Applicant had failed to identify which costs had been wasted, the date range of wasted costs, or the amount of those wasted costs; and failed to provide evidence to support the wide range of accusations they had made. In all the circumstances, a stage 1 order towards a Wasted Costs Order was not evidentially supported, appropriate, proportionate or just.
This case provides a useful reminder on the importance of carefully considering the basis of any potential Wasted Costs Order application; ensuring that the ‘wasted costs’ are clearly defined and calculated, evidence is provided in support, and that any application is proportionate to the amount of potential wasted costs.
How can PIC help?
We are always happy to advise on any costs issue!
Catherine Moran, Costs Lawyer
21.11.24