Wasted costs orders face Lords challenge

Hundreds of wasted costs orders made against opponents' solicitors and barristers over the past 12 years have been granted in breach of the law, the House of Lords will be told next week.

If London barristers Bernard Weatherill QC and Josephine Hayes are successful in overturning a Court of Appeal finding in an order made against them, such orders could become a thing of the past.

The pair - against whom a wasted costs order was made in Medcalf v Mardell in November 2000 - argue that the courts have no jurisdiction under the Courts and Legal Services Act 1990 to make such orders.

Their solicitors, City firm Clyde & Co, will also argue that the court should never make such orders where - as happened in Medcalf - the barristers' own client refuses to waive privilege over documentation in the action.

This prevents the lawyers from using the full documentation of the action in order to defend the wasted costs application.

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'.

Angela Horne, the commercial litigation partner at Clyde & Co acting for the barristers, said she was confident of winning the case.

'If we win because it is not right that the court makes a wasted costs order if the lawyers' client refuses to waive privilege, this will slow down the growing tide of wasted costs applications made against opponents' lawyers,' Ms Horne said.

Patrick Gearon, a litigation partner with Mayfair firm Gordon Dadds who acted for Mr Medcalf in the original action, said: 'The legal profession and particularly the bar are keenly awaiting the outcome, which will be the most important ruling on wasted costs and barristers' duties for several years...

this claim about the issue of jurisdiction would imply that the courts have erroneously made hundreds of such wasted costs orders since 1990.'

Jeremy Fleming