England and Wales High Court (Senior Courts Costs Office) Decisions

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URL: http://www.bailii.org/ew/cases/EWHC/Costs/2003/9036.html
Cite as: [2003] EWHC 9036 (Costs)

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This summary of a judgment has been obtained from the Supreme Court Costs Office pages on the HM Courts Service web site. The citation used by BAILII is not an officially approved citation. The full text of the judgment may have an official Neutral Citation issued by the court, and may be available elsewhere on BAILII.

 

 



No.16 of 2003

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Wagstaff v Colls
2 April 2003
Court of Appeal, Ward, Buxton and Arden LJJ

In this interesting Appeal Court decision that court decided firstly, following Cooper v Williams [1963] 2 QB 567 and Rofa Sport Management A.G v DHL International (UK) Ltd [1989] 1 WLR 902, that proceedings remain extant after the making of a Tomlin Order, so that the existence of such an order does not preclude a subsequent application for a wasted costs order.

The court also decided that it was unnecessary to lift the stay which had been imposed on the proceedings as between the parties to enable the wasted costs application to be mounted.    Lord Justice Ward, who gave the leading judgment, said this at paragraphs 48 and 49 of the judgment:

“48. What then is the answer to the second issue?    In my judgment there is no need to lift the stay.    I can see no purpose of doing so.    To lift the stay is to undo the agreement.   The agreement has been pefected.   Nobody wants the agreement undone.   What is to happen to the action between Mr Wagstaff and Mrs Colls and Mr Brewer if the stay is lifted?   Does it really come alive again?  Or is it to be lifted only for so long as it takes the court to decide whether or not to grant permission for a wasted costs application to be launched?   If so, what is the point of bothering to lift the stay at all when the real issue affects only the appropriateness of the application for wasted costs?     It seems to me, therefore, to be totally unnecessary to require the stay to be lifted for the purposes of bringing a wholly different claim which may be connected with the stayed proceedings but where the connection is wholly tangential.

49. There are two further reasons which support this conclusion.   There is nothing to prevent an application for a wasted costs [order] being made and entertained after a final order has been made and perfected entering judgment for or against the claimants.   That serves to emphasise the freestanding nature of the application for wasted costs.     There is no reason for proceedings concluded by compromise to be treated differently.   Secondly, it is noticeable that in Rofa a party was added to the action which had been stayed without any need for the stay to be lifted.    Again I cannot see why it should be any different here.”

The court then went on to consider what directions were necessary to move forward the wasted costs application which it was intended to bring.