CostsCounsel drafting amendments to notice of appeal containing allegations of fraud - counsel not having before him material to support allegation which could be put before court - wasted costs order madeMedcalf v Mardell and others: CA (Peter Gibson and Schiemann LJJ and Wilson J): 24 November 2000The defendants sought to appeal against a ruling that the claimant was, alongside the defendants, a partner in a company responsible for devising and seeing produced a successful television game show and entitled to a share of all profits.
They applied to amend their notice of appeal to include allegations of fraud.
The application and the appeal failed.
The claimant applied for a wasted costs order against the barristers who had drafted the amendments.
Romie Tager QC and David Mathias (instructed by Camillins) for the claimant.
Nicholas Davidson QC and Leigh-Ann Mulcahy (instructed by Clyde & Co) for the barristers.Held, granting the application, that the Code of Conduct of the Bar required that counsel should have reasonably credible material establishing a prima facie case of fraud before drafting such an allegation; that the material must be evidence which could be put before the court to make good the allegation; that if there were material before counsel which could not be used in court, its existence could not justify the actions of counsel in putting their names to the allegation; that any other dishonest or dishonourable conduct should not be properly alleged without similar material; and that, consequently, since the allegations could not be substantiated on the material that was before the court, the barristers would be liable for the costs of defending those allegations.
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