Law Report: Lawyers avoid wasted costs orders: Regina v Horsham District Council and another, Ex parte Wenman and others. Queen's Bench Division (Mr Justice Brooke) - 1 October 1993

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Counsel and solicitors conducting judicial review applications should reconsider the merits of the application once they had received the respondent's evidence.

Mr Justice Brooke dismissed claims by Horsham DC and West Sussex County Council for wasted costs orders against the barrister, who between March 1991 and March 1992, and the firm of solicitors who acted in judicial proceedings for the applicants against the councils.

The applicants, who were gypsies, obtained legal aid to bring judicial review proceedings against Horsham and West Sussex. Their application was dismissed.

David Elvin (Council Solicitor) for Horsham; Roger McCarthy (Council Solicitor) for West Sussex; James Munby QC and Francis Macleod Matthews (Richards Butler) for the barrister; Roger Hiorns for the solicitors.

MR JUSTICE BROOKE said that the only difference between the lay client who had the means to support litigation and one who had to seek legal aid was that the latter had to satisfy the legal aid board, on the legal merits test, that he had reasonable grounds for taking the proceedings and the board must refrain from deciding to withhold representation because it was unreasonable to grant it. Provided the legally-aided litigant's legal advisers exercised reasonable standards of competence, there could be no question of a wasted costs order being made against them.

In judicial review proceedings, after leave was granted ex parte, the merits of the proceedings often took on a very different complexion once the respondents had served their evidence. The Crown Office's Standard Form contained the warning that legal advisers should reconsider the merits of their application in the light of the respondent's affidavit. Any solicitor and counsel holding themselves out as competent to handle judicial review procedings should be taken as being familiar with it. One of the reasons for the warning was to avoid the wasting of time and incurring of expense in hopeless applications.

In passing the Courts and Legal Services Act 1990 which created a new regime of wasted costs orders, and in substituting negligence for serious misconduct as the threshold test for wasted costs orders in both criminal and civil cases, Parliament must have intended to provide redress for all who incurred expense in civil and criminal cases which was caused by the negligence of lawyers.

In the case of Horsham, there were no grounds for making a wasted costs order. West Sussex's complaints revealed sloppiness and departures from proper procedures which were becoming all too commonplace in judicial review proceedings.

Lawyers acting for a party should not regard it as unnecessary to write a letter before action merely because they believed it to be inevitable that the response would deny their clients' claim. Litigation, which was inordinately expensive and time-consuming, should ordinarily be regarded as a weapon of last resort.

Judicial review proceedings were wholly inappropriate for the resolution of issues of disputed fact. All material matters should be placed before the judge who was being invited to grant leave ex parte. How could it be right not to draw the judge's attention to an alternative statutory remedy or the planning inspector's report when it became available?

However, the new jurisdiction over barristers only came into effect on 1 October 1992. Legal professional privilege might have inhibited the barrister's defence and the legal aid authorities thought the barrister's points were properly arguable. With some hesitation and no great enthusiasm, West Sussex's claim against the barrister was dismissed.

The position might have been very different if the new regime had been in place throughout 1991. The case had disclosed so many departures from good practice that the Bar Council would do well to arrange for the preparation and publication of a statement of the professional standards to be expected of counsel having the conduct of judicial review proceedings.

It would be wrong to make a wasted costs order against the solicitors.