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 http://www.bailii.org/ew/cases/EWCA/Civ/1994/40.html
“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?) http://www.bailii.org/ew/cases/EWCA/Civ/2013/1177.html
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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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)
- 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.
- 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.