TThe Court of Appeal in Ridehalgh was invited to give the adjectives improper, unreasonable and negligent specific and self-contained meanings to avoid overlap between the three.

Their Lordships declined to do so because they did not think that any sharp differentiation between them was useful, necessary or intended.

The court indicated that 'improper' covered not only 'conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty' and 'any significant breach of a substantial duty imposed by a relevant code of professional conduct' but also 'conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion...whether or not it violates the letter of a professional code'.

The court held that 'unreasonable' meant 'conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case' but not necessarily to conduct that leads to an unsuccessful result or which would have been avoided by other more cautious legal representatives.

In this context, the acid test was whether a course of conduct permitted of a reasonable explanation and, if it did, it might be regarded as optimistic but not unreasonable.

The court was clear that 'negligent' denoted 'failure to act with the competence reasonably to be expected of ordinary members of the profession' and quoted Lord Diplock's dicta in Saif Ali v Sydney Mitchell & Co [1980] AC 198: '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', an error 'such as no reasonably well informed or competent member of the profession could have made'.The court emphasised that conduct which is unreasonable may also be improper and conduct which is negligent will very frequently be (if not by definition) unreasonable.Although it should not be difficult to identify breaches of professional conduct, 'the consensus of professional opinion' is likely to be an uncertain yardstick.

Notions of propriety change over the years and the various professions to whom rights of audience or rights to conduct litigation may be granted may have different views as to what constitutes or does not constitute improper conduct.

It remains to be seen whether a legal or other representative is to be judged by the standards of his or her own profession, those of the majority of the professions with rights of audience or rights to conduct litigation or those of the judges.

Circumstances in which impropriety can properly be alleged are fortunately very rare.Acts or omissions which no reasonably well informed and competent member of the profession could have made are usually obvious.

The failure in Turner v Plasplugs Ltd (unreported, 5 May 1995) of an assisted party's solicitors to notify the opposite party of the removal of the limitation of a legal aid certificate until after a protracted hearing had taken place on whether that party was protected from liability for the other party's costs by a limited lega l aid certificate is a typical example.

It is much more difficult to determine the unreasonableness or negligence of a practitioner's advice.

In Librabay Ltd v Needham, (unreported, 1 December 1994) the vice-chancellor of the County Palatine of Lancaster found that the decision to bring an action in the name of the company against the majority shareholders for the benefit of the minority was 'in all the circumstances, wholly unreasonable and negligent'.

In C v C (wasted costs order) [1994] 2 FLR 34 Ewbank J held that a solicitor's advice that her client was entitled to almost all the assets of the husband and the wife on the ground that she had 'made substantial emotional contributions to the marriage' as 'fanciful and unreasonable' and 'the precursor of misunderstanding, intransigence and waste', as it had led to the client's expectations being unreal.

On the other hand, in Turner His Honour Judge Ford could find no basis for suggesting that it was unreasonable or negligent for a solicitor, who did not know of any objections to the validity of a patent other than citations made by Patent Office examiners which had necessarily been overcome in the course of the prosecution of the patent application, not to have advised further searches of the prior art before launching an action for the infringement of a patent.In two of the cases that followed Ridehalgh, the 'acid test' of unreasonableness was applied to exonerate a solicitor of negligence.

Having decided in Re O (A Minor) (wasted costs application) [1994] 2 FLR 842 that an application to discharge a care order which had very little chance of success was neither improper nor negligent, Connell J concluded that the solicitor who had launched such proceedings was not negligent because her conduct permitted of a reasonable explanation.

In Turner Judge Ford took judicial notice of the costs and unpredictability of the results of international patent searching and noted that the plaintiff had very limited means.

He was of the opinion that, in principle, a patentee who has had to spend a not inconsiderable sum to prosecute his application cannot reasonably be expected always to have to conduct international patent searches as a prelude to an action thereafter, a fortiori if he was an individual or small or medium-sized enterprise of limited financial resources for whose benefit the patents county court had been established.

Further, he considered it significant that the Patent Office had not found the relevant specification even with the benefit of experienced staff using advanced searching methods.

If the Patent Office could not find it, it could not in the absence of evidence be regarded as something that any reasonably competent searcher would have found on a simple search.

He concluded that the 'wait-and-see' approach of the plaintiff's solicitor permitted of a reasonable explanation.In their article 'Making a case for wasted costs' (see [1994] Gazette, 23 February, 17) Patti Brinley-Codd and Penny Lewis observed that the new statutory jurisdiction brought into sharper focus the role of the advocate and the extent to which the solicitor is entitled to look to counsel for an indemnity.

They concluded that, as a general rule, a solicitor is entitled to rely upon the advice of counsel properly instructed though he or she must not do so blindly and must exercise his or her own independent judgment.

In Librabay the senior partner of the solicitors, who had been consulted by the minority shareholders, had advised their clients to institute 'unfair prejudice' proceedings .

The firm launched a conspiracy action in the name of the company on the advice of counsel barely out of pupillage.

Jonathan Parker J concluded that counsel's advice that the dispute should be litigated in the context of an action brought in the name of the company, thereby placing the company at risk as to the costs of the action, was 'obviously and glaringly wrong' and 'the root cause of the fiasco which followed'.

He ordered the costs of the company and the majority shareholders to be borne by the solicitors and counsel to be apportioned equally between them.The Court of Appeal emphasised in Ridehalgh that proceedings should be as fair -- but also as simple and summary -- as fairness permits.

In all but straightforward cases of failure to appear, lateness or negligence leading to an otherwise avoidable adjournment, the court should be slow to initiate a wasted costs inquiry.

In all other cases, the Court of Appeal envisaged a two-stage procedure.

First, the complainant should satisfy the court that there are grounds to invite a legal representative to show cause why a wasted costs order should not be made, at which stage the court should weigh the likely costs of the inquiry against the costs claimed as well as other relevant considerations.

If the court decides that there should be an inquiry, the respondent should be informed fully and clearly of the complaint and claim against him, but elaborate pleadings, discovery and interrogatories should be avoided.

The hearing at which the legal representative shows cause as to why a wasted costs order should not be made ought to be measured in hours rather than days or weeks.

Even if improper, unreasonable or negligent conduct on the part of a respondent and a chain of causation between such conduct and an applicant's costs are proved, the court still has a discretion to exonerate the respondent provided such discretion is exercised judicially.

In practice, the two-stage procedure is often elided.

In Librabay, for instance, the respondent solicitors and counsel had consented to being joined as respondents to a wasted costs application.

Upon the hearing to show cause, the barrister contended that the court should consider retrospectively the factors that would have been considered at the first stage including whether the costs of a wasted costs application would outweigh the costs in issue.

The Vice-Chancellor decided that once the application was before him he had to determine it.

As the consequences of a wasted costs order are serious for the practitioner concerned, such applications will usually be resisted strenuously.

Inevitably, the disposal of such applications will take time and cost money -- sometimes, as in C v C (wasted costs order) far more time and far more money than were incurred in the proceedings that gave rise to the application.

It is submitted that in those circumstances the interests of maintaining acceptable standards of professional conduct must prevail.The wasted costs jurisdiction has always been compensatory as well as punitive.

In Myers v Elman [1940] AC 282, Lord Wright said: 'The order is for payment of costs thrown away or lost because of the conduct complained of.

It is frequently, as in this case, exercised in order to compensate the opposite party in the action.'In the same appeal, Viscount Maugham noted that 'the primary object of the court is not to punish the solicitor, but to protect the client who has suffered and to indemnify the party who has been injured'.

In C v C and Librabay, the successful parties were individuals of limited means who would have suffered considerable hardship had no costs order been made, which was clearly not the case with the local authority in Re O.

It is submitted that the hardship of the applicant is a suitable factor to be taken into account in the exercise of the wasted costs jurisdiction.