Lawyers given more protection after costs order ruling

Lawyers may enjoy more protection from wasted costs orders following a House of Lords ruling last week in favour of two barristers, Bernard Weatherill QC and Josephine Hayes.

The pair - against whom a wasted costs order was made in Medcalf v Mardell in November 2000 - argued that the court had no jurisdiction to make such orders under the Courts and Legal Services Act 1990 (see [2002] Gazette, 11 April, 1).

This argument was dismissed by the Law Lords.

However, they upheld the alternative argument that the original finding should never have been made because the client had refused to waive privilege, thus preventing the barristers from using all the documentation in the action to defend themselves.

The original case saw freelance writer Roger Medcalf successfully sue the BBC and other writers over breach of copyright of the format for the BBC television show 'Big Break'.

Patrick Gearon, the partner at London firm Gordon Dadds who acted for Mr Medcalf, said: 'My client is disappointed.

He always believed that the fraud allegations [made against him] were made in a way that was improper and he was supported by the Court of Appeal.'

Angela Horne, commercial litigation partner at City firm Clyde & Co who acted for the barristers, said: 'The decision has set a useful precedent for all such cases in the future, and it should stem the growing tide of applications for wasted costs against another parties' legal representatives.

The decision firmly recognises a barrister's duty to promote his client's interests fearlessly, and without risk of personal sanction or financial penalty.'

Welcoming the ruling, John Bennett, a professional indemnity partner in Weightman Vizards, said: 'It seems a break of all tradition for anyone to be penalised in circumstances where they are prevented from giving their side of the story.'

Jeremy Fleming