England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 22 May 2001

1. LORD PHILLIPS, MR: Section 51 of the Supreme Court Act 1981 provides:

"51(6) In any proceedings mentioned in subsection (1), the court may 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 the rules of court.

(7) In subsection (6) 'wasted costs' means 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 is unreasonable to expect that party to pay."

2. On 18 August 2000 Hale LJ exercised that jurisdiction in this case by making a wasted costs order against the solicitors, Dozie & Company. Mr Emezie of that firm appears today to challenge that exercise of jurisdiction. He is entitled to do so because Hale LJ made the order "nisi" to give him an opportunity to file an affidavit explaining the circumstances that had led her to make the order.
3. Those circumstances appear from the short judgment that she gave. The hearing was a renewed application for permission to seek judicial review in an asylum case. The respondent was represented at that hearing. At paragraph 17 of the judgment, Hale LJ said:

"This was a case in which the solicitor, Mr Emezie, had first represented the applicant on 4th July, albeit as a McKenzie Friend and without benefit of legal aid. He had done that as a public service, and the court is grateful to him for having done so. He had, however, later obtained a legal aid certificate and he knew of that on 28th July. The case was listed on 4th August for 16th August. The solicitors knew of that listing at the latest on 7th August. Nevertheless, they were not able either to file anything in the nature of a skeleton argument or amended Form 86A, or anything that would suggest the actual basis upon which this application was going to be made. The matter came before me simply on the basis of the bundle, which had been before Sullivan J, and no additional material other than the skeleton argument provided by Miss Rahman on behalf of the Secretary of State.

18. I had indicated that I would be willing to give Mr Emezie rights of audience for the purpose of conducting the case, as it was clear that he was fully conversant with it and with all the arguments that could be made on the applicant's behalf. That has been borne out by the fact that the arguments presented by Mr Raw today are essentially the arguments that Mr Emezie had himself devised. But Mr Emezie was unwilling to accept that invitation. He did not feel that he was, as a solicitor, suitably equipped to present it. Bearing in mind that this is indeed the applicant's last chance and the anxious scrutiny which all asylum cases require and deserve, I gave him the indulgence of the adjournment till today.

19. The argument is that it is simply not reasonable conduct on the part of solicitors to profess themselves unable to find any counsel prepared to represent their client in the days from 7th August to 16th August 2000. Our whole system is based on counsel being available at short notice. That is why we have the division between solicitors and counsel. If it were not for that, solicitors would invariably have rights of audience and there could have been no excuse for Mr Emezie not to take up the invitation that first time when it was proffered to him.

20. It is August, of course, and I am sure that Mr Emezie has made some considerable effort to obtain counsel. But that is not the same as what can reasonably be expected of a solicitor in these circumstances. Everybody knows that counsel can be obtained, even in August, at very short notice, in all sorts of urgent matters of which Crown Office matters are a particular example."

4. It was in those circumstances that Hale LJ made the wasted costs order nisi. Mr Emezie has filed an affidavit challenging that order. He has made it plain to us that the grounds of challenge are those set out in the affidavit and that he makes no other challenge of the court's jurisdiction to make that order.
5. In his affidavit he says that the listing of the hearing on 16 August did not come to his attention until 7 August. Following that an application for an adjournment was made to Master Venne when it became clear that counsel was not going to be available for the hearing on 16 August. It was refused, renewed again on 15 August and Hale LJ directed him to return again on 16 August. Mr Emezie continues at paragraph 7:

"The Respondent chose to attend the hearing despite the fact that they were put on notice that if the request for an adjournment was refused, the Applicant's solicitor would make an application to come off the record. Furthermore, it was clear that the court was fully abreast with the case, and could have dealt with the application for an adjournment on 16 August 2000 without the need for the respondent to attend."

6. Mr Emezie has not, in terms, challenged the order on the basis that the respondent should not have an order made in his favour in those circumstances. It seems to me, and this is a matter we are likely to be dealing with in more detail later this morning, that it was reasonable for the respondent to attend on that occasion. Had the judge's indication been accepted, it might have been possible for the matter to be disposed of then and there. But in any event, no complaint is made, nor in my judgment could properly be made, of the fact that the respondent attended the application.
7. I continue with the affidavit which sets out the steps taken by Mr Emezie to obtain counsel:

"The Applicant's solicitor had been in touch with four chambers namely Bell Yard Chambers, 2 Garden Court, 6 Kings Bench Walk, Ground Floor Francis Taylor Building, but was unable to find Counsel. It is the case that during the month of August, most barristers are on holiday. It is worth noting that the above-named chambers house more than fifty immigration barristers and yet their Clerks could not supply counsel when requested to do so.

The only barrister who was available at 6 Kings Bench Walk, Mr S Kadri, had to return the brief sent to him on 15 August 2000 because of short notice."

8. Mr Emezie submits that the requirements of the jurisdiction to make the wasted costs order were not met. He has referred us to the decision of this court in Ridehalgh v Horsefield [1994] Ch 205. In the course of his judgment in that case, Sir Thomas Bingham, MR dealt with the meaning in section 51(7) of the words "improper, unreasonable or negligent". In my view, the material word, in the context of the present case, is negligent. Sir Thomas Bingham said this about that word:

"It was argued that the Act of 1990, in this context as in others, used 'negligent' as a term of art involving the well known ingredients of duty, breach, causation and damage. Therefore, it was said, conduct cannot be regarded as negligent unless it involves an actionable breach of the legal representative's duty to his own client, to whom alone a duty is owed. We reject this approach. (1) As already noted, the predecessor of the present Ord 62 r.11 made reference to 'reasonable competence'. That expression does not invoke technical concepts of the law of negligence. It seems to us inconceivable that by changing the language Parliament intended to make it harder, rather than easier, for courts to make orders. (2) Since the applicant's right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client.

We cannot regard this as, in practical terms a very live issue, since it requires some ingenuity to postulate a situation in which a legal representative causes the other side to incur unnecessary costs without at the same time running up unnecessary costs for his own side and so breaching the ordinary duty owed by a legal represent to his client. But for whatever importance it may have, we are clear that 'negligent' should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession."

9. Hale LJ held that Dozie & Co had not acted reasonably on the facts of this case, applying that test. Whether she was right to do so is the short issue before us.
10. We have concluded, having heard Mr Emezie's submissions, that Hale LJ was correct to conclude that on this occasion the applicant's solicitors had not acted in the manner reasonably to be expected of a solicitor. They had had notice on 7 August of the pending hearing. That gave them more than a week to find counsel to appear on that hearing. They made some considerable endeavours by approaching four chambers but that in no way exhausted the potential supply of counsel in the vacation. At the last minute they were able to find counsel at 24 hours' notice.
11. It seems to me that Hale LJ was right to conclude that, had they exercised reasonable endeavours as solicitors should have done in that situation, they would have been able to find counsel in time to instruct him or her to appear on the renewed application.
12. For those reasons, I would confirm the order made by Hale LJ.
13. LORD JUSTICE PILL: I agree.
14. LORD JUSTICE KEENE: I agree. One knows that fewer counsel tend to be available in August than at other times, but that is a fact also known to solicitors involving themselves in litigation; they must act accordingly. It appears, as my Lord, the Master of the Rolls, has said, that the solicitors tried during that week four sets of chambers with no success until the day before the hearing which proved too late. In my judgment, it is not good enough to try only four sets in the course of a week. There are many other sets of chambers with many members capable of dealing with immigration matters. There was time to approach them, but that was not done.
15. In my view that fell below the standard of a reasonably competent solicitor. I would uphold the order made by Hale LJ.
Order: Application refused. Leave to appeal refused.