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There is no doubt that including cases of negligence which do not involve misconduct
within the wasted costs jurisdiction would involve a significant extension of liability.
Explaining "negligence" within the context of the English statute, Sir Thomas
Bingham MR rejected the submission that an actionable breach of the legal
representative's duty to his own client had to be shown, stating :-
"...... we are clear that ‘negligent' should be understood in an untechnical way to denote
failure to act with the competence reasonably to be expected of ordinary members of the
profession."
The negligence in question has, however, to be of the kind that would support an
action for negligence and so would involve :-
"...... advice, acts or omissions in the course of their professional work which no member of
the profession who was reasonably well-informed and competent would have given or done
or omitted to do;" or an error "such as no reasonably well-informed and competent member
of that profession could have made."
Nonetheless, it is clear that this head of liability casts its net more widely than the
present grounds involving impropriety or unreasonableness in the nature of
misconduct.
Notes
Ridehalgh v Horsefield (supra) at 233.
Saif Ali v Sydney Mitchell & Co [1980] AC 198, 218, 220, per Lord Diplock.
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