Defendant lawyers have predicted that they will be emboldened to make more wasted costs applications after securing an order that claimants should pay for running a flawed case.

In a blog post, Kennedys senior associate Nicola Smith and partner Justin Collins outlined an abandoned holiday sickness case in which the claimants’ representatives were ordered to pay £37,000 following an application by the tour operator.

The article did not name the claimant firm or cite the case, but the authors said the solicitors involved had 'repeatedly' advised their clients to hide or delete any holiday pictures or posts on social media after finding material that was likely to undermine the claim.

It was further stated in the article that the solicitors involved went on to issue court proceedings despite obtaining instructions on the adverse social media evidence, and asked their clients to sign a list of documents that did not include any online posts. Solicitors’ files were reportedly missing claimants’ replies to the located social media posts.

Smith and Collins said the sickness claims, which were discontinued, had been dishonest and that their tour operator client was required to incur significant costs defending it and then pursuing an application for costs.

They suggested that the case raises the prospect of further applications for wasted costs orders against any solicitors suspected to have hidden or left out evidence that might be detrimental to their clients’ case.

‘The conduct alone is not enough, as the applicant must also demonstrate that this conduct caused them to incur costs,’ they said. ‘In this case, we could demonstrate that the defendant’s costs of the claim and the application, could be attributed to the solicitors’ conduct.’

They said claimant solicitors cannot ‘hide behind their client’s dishonesty to excuse their own conduct’ and said there could be further similar applications from defendant representatives.

‘Wasted costs orders serve as a useful reminder that parties to litigation have a duty to promote the overriding objective and follow the SRA rules.

‘Failure to do so risks being penalised in costs, reputational damage and potentially a negligence claim. Watch this space - we may see an increase in wasted costs applications.’


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