(Queen's Bench Division; Mackay J; 6 February 2009)
In the course of acrimonious financial relief proceedings, the wife's junior counsel obtained a freezing order against the husband's assets, without notice. The order was subsequently set aside, and the wife agreed to pay the husband's costs. The husband then issued wasted costs proceedings against the wife's junior counsel, arguing that the without notice application had been conducted in an improper, unreasonable or negligent manner, in that counsel had failed adequately to set out the husband's defence to the freezing order.
Dismissing the application, the judge noted that it was established law that lawyers should not be deterred from pursuing their client's interests by fear of incurring a personal liability to their client's opponents. Lawyers must be afforded a fair opportunity to defend themselves and wasted costs orders should not become a back-door means of recovering costs not otherwise recoverable. Wasted costs orders were remedies of last resort, and a lawyer should not be called on to reply unless an apparently strong prima facie case had been made against him. Orders should only be made under Supreme Court 1981, s 51(6), if, and to the extent that, the conduct in question had been established as directly causative of wasted costs. Generally speaking, applications for wasted costs were best left until after the end of the trial.