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It seems clear that the words "by any other misconduct or default" in O 62 r 8(1)
indicate that the impropriety, unreasonableness or delay required to trigger a wasted
costs liability must be such as to amount to misconduct. Thus, Sir Thomas Bingham
MR, giving the judgment of the English Court of Appeal in the leading case of
Ridehalgh v Horsefield [1994] Ch 205, explained the meaning which the concepts of
"improper" and "unreasonable" have traditionally been given in this context as follows
:-
"‘Improper' means what it has been understood to mean in this context for at least half a
century. The adjective covers, but is not confined to, conduct which would ordinarily be held
to justify disbarment, striking off, suspension from practice or other serious professional
penalty. It covers any significant breach of a substantial duty imposed by a relevant code of
professional conduct. But it is not in our judgment limited to that. Conduct which would be
regarded as improper according to the consensus of professional (including judicial) opinion
can be fairly stigmatised as such whether or not it violates the letter of a professional code.
‘Unreasonable' also means what it has been understood to mean in this context for at least
half a century. The expression aptly describes conduct which is vexatious, designed to harass
the other side rather than advance the resolution of the case, and it makes no difference that
the conduct is the product of excessive zeal and not improper motive. But conduct cannot be
described as unreasonable simply because it leads in the event to an unsuccessful result or
because other more cautious legal representatives would have acted differently. The acid test
is whether the conduct permits of a reasonable explanation. If so, the course adopted may be
regarded as optimistic and as reflecting on a practitioner's judgment, but it is not
unreasonable."
wasted costs in two ways :-
(a)
by lowering the threshold for liability to encompass cases where wasted costs
are incurred as a result of negligence which does not itself amount to a species
of misconduct, along the lines adopted in England and Wales;
and,
(b)
by making barristers also liable for wasted costs.
Notes
At 232.
In the Supreme Court Act 1981 s 51(6) as amended by the Courts and Legal Services Act 1996, s 4
and CPR 48.7.
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