COSTSDefendants seeking wasted costs order against claimants' legal representatives on ground that dishonesty improperly pleaded - court having jurisdiction to make order even where barrister not exercising right of audience - pleading of fraud not improper unless unreasonableBrown and another v Bennett and others: ChD (Mr Justice Neuberger): 16 November 2001The defendants applied pursuant to section 51 of the Supreme Court Act 1981 for an order that the claimants' counsel and solicitors personally pay costs wasted in the litigation, on the principal ground that it was improper for counsel to have pleaded and then maintained allegations of dishonesty, and equally wrong for the solicitors to have been associated therewith.The applications were resisted on the basis that there was no jurisdiction under section 51 to make a wasted costs order in favour of one party against the legal representatives of another party to the proceedings.

Counsel resisted the applications on the additional ground that since they had only settled documents and had not appeared at trial they had neither exercised a right of audience nor conducted litigation for the purposes of section 51(13).Barbara Dohmann QC and Robert Anderson (instructed by Berwin Leighton Paisner) for the first, second, fourth, fifth, sixth and seventh defendants.

Richard Slowe, solicitor, and Paul Stanley (instructed by SJ Berwin) for the eighth, ninth and tenth defendants.

John L Powell QC, Roger Stewart QC and Amanda Savage (instructed Richards Butler) for the claimants' counsel.

Guy Mansfield QC and Derrick Dale (instructed by Reynolds Porter Chamberlain) for the claimants' solicitors.

Held, dismissing the applications, that under section 51 a party could apply for a wasted costs order against the legal representatives of another party to the same proceedings; that a barrister could be subject to a wasted costs order notwithstanding the fact that the conduct complained of had occurred when he was not exercising his rights of audience; that a legal representative who pleaded a claim of dishonesty acted improperly only if his decision was one which no reasonable lawyer could have reached; that, with the exception of the allegations pleaded against one of the defendants, the pleading of dishonesty could be justified; that, in any event, since the claimants had refused to waive privilege there was a real risk of unfairness to the legal representatives; and, that accordingly, the applications failed.