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Section 18: Wasted costs
Proposal 33
In place of the powers currently conferred on the court by RHC Order 62 r 8(1), the court's
power to make wasted costs orders against solicitors should be exercisable where the wasted
costs are incurred as a result of any improper, unreasonable or negligent act or omission on
the part of a solicitor or any employee of such solicitor; or which costs, in the light of any
such act or omission occurring after they were incurred, the court considers it unreasonable
to expect that party to pay.
Proposal 34
The court's power to make wasted costs orders against solicitors should be extended to
cover barristers.
Proposal 33 (for including negligence not amounting to misconduct as a ground for making
a wasted costs order) should not be adopted.
Rules along the lines of paragraphs 53.4 to 53.6 of the CPR Practice Direction on Costs,
modified to exclude reference to liability based on negligence, should be issued providing
guidance for the exercise of the court's discretion and discouraging disproportionate satellite
litigation in relation to wasted costs orders.
Applications for wasted costs orders should generally not be made or entertained until the
conclusion of the relevant proceedings.
Rules should be issued making it clear (i) that it is improper to threaten wasted costs
proceedings with a view to pressurising or intimidating the other party or his lawyers; and (ii)
that any party who wishes to put the other side's lawyers on notice of a potential claim for
wasted costs against them should not do so unless he is able, when doing so, to particularise
the misconduct of such lawyers which is alleged to be causing him to incur wasted costs and
to identify evidence or other materials relied on in support.
Barristers should be made subject to liability for wasted costs under O 62 r 8.
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