While anything that speeds up civil litigation and saves costs is to be welcomed, the warning in the first paragraph of the practice direction 'Civil litigation: case management' [1995] 1 WLR 262 that 'failure by practitioners to conduct cases economically would be visited by appropriate orders for costs, including wasted costs orders' may have the opposite effect.

That warning is likely to be seized upon by obstructive litigators.Although the Court of Appeal deprecated threats to apply for wasted costs orders in Orchard v South Eastern Electricity Board [1987] 2 QB 565, it indicated in Ridehalgh that if one side considered the conduct of the other to be improper, unreasonable or negligent and likely to cause waste of costs it would not be objectionable to 'alert the other side to that view'.

Because an inexperienced or cautious litigator might be deterred from pressing for disclosure of a relevant document or persuaded to concede an arguable point if 'alerted' to particular provisions of the practice direction by his or her opponent, it is essential to emphasise the exceptional nature of wasted costs orders and explain the relatively limited circumstances in which they can properly be awarded.It is clear from Ridehalgh and the cases that have followed that the power to order a legal or other representative to bear the costs of his or her client or another has been exercised very sparingly.In Ridehalgh the Court of Appeal heard six appeals from solicitors and counsel who had been ordered to pay, or invited to show cause why t hey should not pay, the opposing party's costs.

The appeals succeeded.

The court took advantage of the appeals to lay down guidelines as to the circumstances in which a court may order a barrister or solicitor to pay his or her own client's or an opposing party's costs.

Those guidelines covered the conduct that gives rise to liability for such an order, the causal link between such conduct and the costs incurred by the client or other party and the correct procedure to be followed.

These guidelines have been applied in a number of cases (C v C (wasted costs order) [1994] 2 FLR 34; Re O (A Minor) (wasted costs application) [1994] 2 FLR 842; Bell Fruit Manufacturing Co Ltd v Twinfalcon Ltd [1995] FSR 144; Librabay Ltd v Needham (unreported, Newcastle-upon-Tyne, 1 December 1994) Turner v Plasplugs Ltd (unreported, patents county court, 5 May 1995) and a consistent practice on the exercise of the jurisdiction is beginning to emerge.A practitioner may be ordered to bear another party's costs in the following circumstances: where he or she launches, defends or carries on proceedings without authority; or where costs result from 'any improper, unreasonable or negligent act or omission' on his or her part.The first arises from breach of an implied warranty of authority and the second from the codification and modest extension by s 4 of the Courts and Legal Services Act 1990 of principles that had been developed by the courts since the 18th century or earlier.

It is submitted that the Ridehalgh guidelines apply only to the second, as a warranty of authority may be breached quite unintentionally without any impropriety, unreasonableness or negligence.It is true that there is often some overlap, as was the case in Librabay Ltd v Needham where the respondent solicitors, acting upon the advice of counsel, instituted conspiracy proceedings in the name of a company against its majority shareholders in an attempt to prevent the implementation of a resolution to remove the minority from the board of directors.

Not only were such proceedings unreasonable, they were also unauthorised, as the majority shareholders would not have ratified them.

It is also true that the two jurisdictions are often confused, but they are based on different imperatives and are conceptually distinct.S 4 of the Courts and Legal Services Act 1990 substituted new provisions for s 51 of the Supreme Court Act 1981.

The new section differs from the old by providing specifically for the Civil Division of the Court of Appeal, the High Court and any county court to disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court'.

'Wasted costs' are defined by s 51(7) as '.

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any costs incurred by a party (a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or (b) which, in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay'.In Ridehalgh the Court of Appeal emphasised that it is essential to demonstrate a causal link between the improper, unreasonable and negligent conduct and the waste of costs.

Without such a link the court has no jurisdiction to make an order.The court approved a three-stage test that had been propounded by the Criminal Division in Re A Barrister (wasted costs order) (No 1 of 1991) [1993] QB 293 whenever a wasted costs order is contemplated:'1.

Has the legal representative of whom complaint is made acted improperly, unreasonably or negligently?2.

If so, did such conduct cause the applicant to incur unnecessary costs?3.

If so, is it in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs?'In Librabay the respondent solicitors and counsel contended that the decision to launch the conspiracy action had not caused the applicants to incur unnecessary costs because their clients could have brought 'unfair prejudice' proceedings under s 459 of the Companies Act 1985 which would have been just as expensive.

Jonathan Parker J, vice-chancellor of the County Palatine of Lancaster, dismissed this argument: 'The possibility that, had not this action been launched, other proceedings would have been incurred, is in my judgment nihil ad rem.

In the first place, I cannot speculate as to what might have happened had a different course been taken; but in the second place, the possibility of other costs being incurred does not, in my judgment, sever the necessary causal link between the decision to commence this action and the costs incurred by the parties in the course of it.'The crucial difference between an 'unfair prejudice' petition and a conspiracy action in the name of the company was that the majority shareholders would have been entitled to recover their costs from the minority had an unfair prejudice petition failed, but they would have been liable for the costs of the conspiracy action whatever its outcome either directly as unsuccessful defendants or indirectly as majority shareholders of an unsuccessful plaintiff.S 51 defines a 'legal or other representative' as 'any person exercising a right of audience or right to conduct litigation'.

That clearly includes barristers who were not subject to the court's disciplinary jurisdiction before 1 October 1991.

In Bell Fruit Manufacturing Co Ltd v Twinfalcon Ltd [1995] FSR 144 it was common ground that the definition also includes patent agents in the patents county court.

The section will doubtless apply to members of other professions to whom rights of audience or rights to conduct litigation may be granted pursuant to ss 27 and 28 of the 1990 Act.