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Wasted costs


I think most practitioners are aware that this has been coming, and one has now hit.


HU v SU 2015


This was in private law proceedings, and the father was paying privately, so there actually were costs that were incurred. It relates to the inability of the mother’s team to get police disclosure (caused in part because the Legal Aid Agency had dallied in processing the extension to her certificate)


The mother’s solicitors had written to the Court and the father, but what they had not done was applied to vary the existing order about timetabling and to thus obtain an extension from the Court.


Here is the  law on costs, as set out in Ridehalgh v Horsefield 1994


“a) Had the legal representative of whom complain was made acted improperly, unreasonably or negligently?

b) If so, did such conduct cause the applicant to incur unnecessary costs?

c)If so, was it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?”


That has always been considered quite a high test, because of the wording in (a).  What HU v SU does is confirm the High Court’s view that post the cascaded authorities of the President in Re W (adoption order leave to oppose) 2013 (remember the contumelious attitude case?)


that :-


It must now be clear and plain to any competent family practitioners that:

i) court orders must be obeyed;

ii) a timetable or deadline set by the court cannot be amended by agreement between the parties; it must be sanctioned by the court; and

iii) any application to extend the time for compliance must be made before the time for compliance has expired.


And thus that failure to do so amounts to improper or unreasonable conduct for part (a) of the Ridehalgh test.


In this particular case

  1. He  [Mother’s counsel]referred me to a chronology of relevant events. On 16.12.14 the mother’s solicitors sought a further extension to the mother’s public funding certificate. It was not granted until 13.1.15 and as a result of the delay in granting the same a letter of complaint was sent to the Legal Aid Agency.
  2. On 7.1.15 they sent a letter to the father’s solicitors setting out that an extension of public funding was still awaited and requesting a one week extension for the filing of the mother’s statement (orders to be filed and served by 10.1.15). Crucially this letter did not set out that police disclosure had not yet been formally sought and no communication was sent to the court.
  3. On 16.1.15 the mother’s solicitors wrote to the father’s solicitors and to the court notifying them that the mother’s public funding certificate had been extended, police disclosure had been requested and that the mother’s statement and schedule of findings would be filed and serve after police disclosure had been received.
  4. I have a number of observations: i) the letter to the court was not noted to be for the attention of me or my clerk and it was incorrectly addressed. I did not receive it;

    ii) the solicitors had decided that the statement and schedule would be filed after police disclosure had been received. No such linkage or sequential process was made or set out in the order of 15.12.14; and

    iii) no application was made for an extension of time to file the police disclosure and/or the mother’s statement and schedule.

  5. A further letter is sent to the father’s solicitors and the court dated 23.1.15. Once again the letter is incorrectly addressed and was not received by the court. Furthermore it merely apologised for the further delay in obtaining police disclosure and nothing else.
  6. On 29.1.15 yet another letter is sent to the father’s solicitor but not to the court) setting out that the mother would not be able to complete her statement or a schedule until police disclosure had been received. No time for receipt of the police disclosure was given, however, on the same day the mother’s solicitors chased the Metropolitan police in respect of the disclosure sought.
  7. By an email sent on 30.1.15 to the court, the father’s solicitors sought an urgent directions hearing. On the same day the mother’s solicitors sent a letter to the court and to the father’s solicitors. It once more asserted that the mother could not file a statement or a schedule without sight of the police disclosure. The letter did not: i) set out what steps had been taken to secure disclosure from the police;

    ii) it did not set out any date or likely timeframe by which disclosure would be made by the police;

    iii) seek an extension of time in which to file the police disclosure and/or the mother’s statement and schedule; and

    iv) a revision of the timetable set by the court on 15.12.14.

  8. At the directions hearing on 4.2.15 I directed the Commissioner of the Metropolitan Police to provide the disclosure sought by noon the following day. The mother was to file and serve her statement and schedule by 6.2.15 and the father his statement and schedule by 9.2.15. Those orders were complied with and it was possible for the fact finding hearing to proceed but at considerable cost to the father, who is privately funded, of legal fees incurred by attendance at the urgent directions hearing.
  9. Mr Newton QC recognises the faults of his instructing solicitors. He characterises them as errors and oversights for which his solicitors profusely apologise, but which he submits did not pass the high hurdle of egregious conduct which merits being condemned by the making of a wasted costs order. He rightly reminds me of the considerable professional embarrassment which can result from the making of such an order.
  10. In my judgment however the serial failures of the mother’s solicitors were elementary. The failure to seek the leave of the court to extend the time for compliance with the directions order of 15.12.14 is to be characterised as incompetence, the result of which could have been the adjournment of this fact finding hearing. Their actions, as set out above, are redolent of past poor practices which should no longer feature in private or public law family proceedings.


In this case, a hearing took place that was ineffective, because the police disclosure had not been obtained and thus the statement and schedule of allegations weren’t filed. That hearing did cost the father money, and he was entitled to recover that from the mother’s solicitors (not mother)

  1. I am satisfied that the conduct of the mother’s solicitors is so serious and so inexcusable that I find that they acted improperly and unreasonably. Further the conduct caused the father to incur unnecessary costs. Finally in all of the circumstances I consider it just to order the mother’s solicitors to compensate the father for the whole of the costs he incurred by reason of the directions hearing on 4.2.15.
  2. I shall make a wasted costs order against the mother’s solicitors. The father’s costs of the February directions hearing will be subject to a detailed assessment.


I hope that Court staff up and down the country are ready for a barrage of applications, because it is plain now that not making an application to extend a timetable (whether in private law OR public law) exposes the lawyer to a risk of a wasted costs order.

Even where, as in this case, that the delay was a result of external agencies (the police and the Legal Aid Agency), the fault still lies with the lawyer for not applying for an extension of time.

Standard letter


For the attention of His/Her Honour Judge _____________



RE: The  ______________ Children Case number ______________


I am writing to apply on behalf of the Local Authority for an extension of time for the filing of final evidence. This evidence was due to be filed by Friday 25th October at 4.00pm. It is possible that the Local Authority will not be able to file this evidence until 4.21pm on Friday 25th October, and as a result of the Court of Appeal decision in Re W, I now have to apply to the Court for an extension to that deadline before it expires.

In large part, the reason for the deadline potentially being missed as that as a result of the Court of Appeal decisions in Re G, Re B-S and Re W (no, a different one) all of which are attached, stringent new requirements on what must go into the Local Authority evidence have arrived in rapid succession, and therefore not only is it taking social workers longer to write statements incorporating a wholly different way of analysing the welfare checklist, comparing the various options for placement and having to devise five care plans instead of one, it is also taking me longer as a lawyer to check those statements against the various requirements of Court of Appeal decisions which are coming at the rate of one per week.

In order to make this application, I have prepared a C2 form, raised a cheque, drafted an order showing how the delay will affect the timetable (hint, I have broadly taken the existing timetable and every time it said “4.00pm” I have changed that to “4.21pm”.   I also had to contact the three other parties to share this with them, they all had to obtain instructions and then send me a signed copy of the draft order back.  Fortuitously, every single one of them was in when they got my message, and their clients answered the phone calls and gave them prompt instructions. How wonderful.

Despite this being a consent order, it is still subject to judicial scrutiny and the Court is of course not a rubber stamp, so I have made provision for an hour of consideration (taking into account that the file has to be brought up, the matter looked at and an order drawn up and sent out). The very latest moment the application could be lodged was therefore 3.00pm.

As the Court office is not responsive after 2.00pm due to staffing cuts and austerity, I had to ensure that the order was lodged with the Court by 1.00pm, however as that is the lunchhour, I moved that back to 12.00pm. I was then informed that the Judges all sit from 10.00 until 1.00 and cannot be disturbed, so I invented a time machine and went back in time so that the application was formally lodged with the Court by 9.00am on Friday. That meant knowing that it was needed by Thursday afternoon, to give me time to get consents from all the other parties. Luckily, with my time machine, I knew a day and a half before the document was due that it would be 21 minutes late.  [However, I also peeked into the future and read your judgment from the final hearing, so I had some more tweaks to make to the statement, so it will be 4.22 pm now. Shall we start over, or are we just going to be cool about the additional minute?]

Thank you for your attention and I look forward to seeing the draft order approving the extension, which will of course arrive at 3.59pm or before.



[Dear Suesspicious Minds, I hear you have been doing those Sarcasm Managment Courses with “Living Without Sarcasm”  – how are they working out?

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Apropos of absolutely nothing, here’s a beautiful painting of a roman emperor


lovely painting by Waterhouse, nothing to do with anything, it just looked nice

lovely painting by Waterhouse, nothing to do with anything, it just looked nice