Judge: Henderson J.
Citation:  EWHC 2546
Summary: Following on the decision above, the matter returned to Court in a different guise. Mr S died in late 2010; the Deputy (the first Applicant) and her solicitor (Mr Judkins) then made an application to the Court for a wasted costs order against Mrs Duke’s (the ‘D’ of the previous decision) solicitors, Hunters, in respect of the period after 8 December 2009 (i.e. the period in which Henderson J had found that the general rule no longer applied). The solicitor with conduct of the matter on Mrs Duke’s behalf were unable to disclose any privileged information to the Court, as she had not waived her legal professional privilege. Two objections were taken by Counsel for Hunters: (1) the application was made too late; and (2) the terms of a consent order entered into the Chancery proceedings brought by the Deputy precluded the application being made.
Henderson J started by analysing the applicable principles which he confirmed were (by virtue of Rule 160(1) of the Rules) in practice the same as in the High Court. This meant that the relevant rules were to be found in CPR r.48.7 and Paragraph 53 of the Costs Practice Direction, as amplified by a number of standard authorities (Ridehalgh v Horsefield  Ch. 205; Medcalf v Mardell  UKHL 27,  1 AC 120). Given the fact that Mrs Duke had not waived her privilege, the effect of Medcalf v Mardell is that:
“it is only in extremely rare cases that a wasted costs order should be made against a legal representative who is prevented by legal professional privilege from giving his full answer to the application. The court should make an order only if, proceeding “with extreme care”, it is satisfied that there is nothing (my emphasis) the practitioner could say to resist the order, had privileged been waived, and, in addition, that it is in all the circumstances fair to make the order. As Lord Hobhouse put it, the lawyer must be given the benefit of every reasonably conceivable doubt that might be raised by privileged material which might possibly exist. The House also emphasised the need to prevent the jurisdiction from generating “a new and costly form of satellite litigation”, and the need for an application against the lawyers acting for an opposing party to be apt for summary determination at a hearing the length of which should be measured in hours rather than days.” (paragraph 20)
For reasons that are immaterial for purposes of this Newsletter, Henderson J found that the second objection taken by Hunters (relating to the consent order) was not made out, but that the first objection (timing) was valid. He went on, obiter, to make a number of comments about the conduct of the solicitors in the instruction of the expert whose evidence was the subject of such criticism in the substantive judgment. Whilst he was critical of the approach taken, he found that the stringent test set down in Medcalf v Mardell was not met, such that he would not have made a wasted costs order against Hunters given that they were unable to respond properly to the application.
Comment: Again, although this judgment is fact specific, it is of some wider importance for confirming (if confirmation were needed) the direct read-across of the principles applicable in wasted costs matters from the High Court to the Court of Protection.