Costs

COSTSWasted costs - litigant's former solicitor never issuing process or conducting litigation - court having no power to make wasted costs order against himByrne v Sefton Health Authority: CA (Lords Justice Peter Gibson, Chadwick and Longmore): 22 November 2001In April 1999 the recorder in the county court dismissed the claimant's action against the health authority for damages for negligent misdiagnosis of injuries received in May 1989.

The action had been in contemplation since February 1990 but the claimant's former solicitor, D, while obtaining two medical reports and legal aid, had never issued proceedings.

In 1996 the claimant instructed new solicitors and in 1998 the claim against the health authority was finally issued.

Following its dismissal on limitation grounds, the recorder made a wasted costs order under section 51(6) of the Supreme Court Act 1981, as inserted by section 4 of the Courts and Legal Services Act 1990, against D.

D appealed.

Tracey McLevy (instructed by Quinn Melville, Liverpool) for D.

James McKeon (instructed by Hill Dickinson, Liverpool) for the health authority.Held, allowing the appeal, that the jurisdiction to award costs against a solicitor under section 51(6) of the 1981 Act applied only in relation to someone who, by virtue of the definition in section 51(13) read in conjunction with section 119(1) of the 1990 Act, had issued proceedings or performed any of the ancillary functions, such as entering an appearance, associated with the conduct of litigation on behalf of a client; and that since the complaint against D was that he had done none of those things in relation to the claimant's proceedings, there could be no jurisdiction under section 51(6) to make the order against D.

(WLR)