Claimant solicitors have been slapped with a wasted costs order after a judge found they had acted negligently and improperly in pursuit of a hopeless case against the wrong defendants.
North east firm Tilly Bailey & Irvine had acted for the daughter of a deceased former factory worker who brought claims for alleged asbestos exposure against various companies.
In a joint application in 2023, two of the defendants had sought to have the claims struck out on the basis that documentary evidence proved they had not employed the deceased. They also contested the claim on exposure on the basis it had no reasonable prospect of success.
In Caroline Robinson v Air Compressors & Tool Limited & Ors, Master Thornett noted that the claimant and her representatives did nothing to address this identity issue before it came before the court in 2024. At that hearing, the claimant agreed to dismiss claims against the two defendants and substitute another.
Explaining how the wrong defendants were identified, solicitor Mark Ellis of Tilly Bailey & Irvine said one of the companies had a ‘complex corporate history’. Opposing the wasted costs application, the firm later sought to blame the defendants for not making their position clearer during the protocol stage.
Thornett said he was ‘wholly satisfied’ that the decision to continue the claim even when the defendants had raised the issue around corporate identity was neither explained nor justified. If the lawyers had carried out just basic research into the companies’ histories, they would have concluded these were the wrong defendants. Thornett said most if not all reasonable practitioners would have conducted these checks before issuing the claim.
It was possible that the claimant had directly instructed her lawyers to continue with claims they regarded as unsustainable, and so the question was whether continuing to carry out those instructions was improper, unreasonable or negligent.
The judge said the continuance of the claims, which continued until just before the hearing of the defendants’ strike-out application, was negligent. ‘As officers of the court... they have no reasonable explanation or justification for that conduct, irrespective of instruction,’ said the master. ‘It was unjustifiable and amounted to an abuse of process.’
‘If the firm had been instructed to act in the claimant’s best interests then the procedural adjustments as eventually took place in May 2024 should have been done much earlier and so expense avoided,' the judge said.
‘Conversely, if the firm was acting on inappropriately abusive instructions to still continue, then there was a conflict of interest such that they should not have remained on the record.’
This article is now closed for comment.
8 Readers' comments