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Passing the buck may cost you a buck: A Father v A Mother [2025] EWHC 364 (Fam) (20 February 2025) - wasted costs against legal representatives with sloped shoulders…
In this case, the father applied to have the parties’ two children returned to Nigeria, following their alleged unlawful removal by the mother on or around 24 June 2024.
The matter was eventually listed for a 3-day fact-finding hearing on 16 December 2024.
This had been preceded by a pre-trial review hearing on 4 December 2024, at which the mother’s counsel made it clear that she would not be available to represent the mother at the forthcoming fact-finding hearing, nor was alternative counsel available from her Chambers.
However, at 9.36am on the morning of the first day of the fact-finding hearing, the judge received an email from the mother’s solicitors, Messrs Burnham Law, requesting an adjournment on the basis that no counsel had been secured to represent the mother.
The judge made further enquiries of Messers Burnham Law, both via email that day and by ordering a representative of the firm to attend court the next day. The solicitor with conduct of the case was (coincidentally…) due to fly abroad on holiday that night, so another associate from the firm (whom it transpired did not even have rights of audience) had to attend instead.
Ultimately, the fact-finding hearing had to be adjourned, as it proved impossible to source alternative counsel to represent the mother at such short notice.
The judge was evidently not satisfied with the representations made by Messers Burnham Law and listed a hearing on 7 January 2025, to consider the issue of wasted costs. In the meantime, Messers Burnham Law were invited to reflect on their role in the father’s wasted costs and to consider whether to make offers to settle.
No offer to settle was forthcoming (until mid-way through the hearing on 7 January!).
At the hearing on 7 January 2025, Messers Burnham Law tried to suggest that it had been counsel’s responsibility to instruct an alternative advocate to represent the mother.
The judge disagreed.
In fact, the judge found that Messers Burnham Law had failed to take any steps to prepare for the hearing at all! They had not complied with any of the directions made at the PTR. They had failed to respond to emails from the mother in the week preceding the hearing. They had not prepared any trial/witness bundles. They had not taken any steps to ensure that the contact details of the witnesses giving evidence remotely were made available to the court.
The judge ultimately made a wasted costs order against Messers Burnham Law, as well as making findings that the firm had been negligent and had failed in their core SRA duties [at 58 – 59].
The judge stressed that solicitors should remember their role in the proper instruction of counsel. Solicitors not only have a responsibility to ensure they instruct an advocate to represent their clients at court, but also to ensure counsel is properly and fairly instructed in a timely manner, so that they (counsel) can in turn comply with their regulatory and ethical duties to client and court [at 52].
Messrs Burnham Law were ordered to pay:
- The entirety of the father’s counsel’s costs for the 3-day hearing [63]
- The father’s costs incurred in travelling to the jurisdiction [from Nigeria] (flights and accommodation) [64]
- The father’s counsel’s costs in drafting the skeleton argument and attending the costs hearing [65]
- Interest on the costs between the time counsel’s fees were paid and date when payment of the costs were met [66]
The judgement sets out a helpful aide memoire on the law relating to wasted costs against a legal representative, for those wishing to refresh their knowledge [see paras 31 – 36]. In basic summary:
The jurisdiction of the court to make a wasted costs order is provided for by section 51(6) of the Supreme Court Act 1981. Section 51(7) defines wasted costs:
'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
The leading case remains In Ridehalgh v Horsefield, and Watson v Watson (Wasted Costs Order) [1994] 2 FLR 194
When considering whether to make a wasted costs order against a legal representative, a three-stage test applies:
- Has there been an improper, unreasonable or negligent act or omission? The applicant has to show that the respondent failed to act with the competence reasonably expected of ordinary members of the solicitors’ profession.
- As a result, have any costs been incurred by a party? The applicant has to show a causal link between the respondent’s conduct and the wasted costs. Where the conduct is proved but no waste of costs is shown to have resulted, the case may be one to be referred to the appropriate disciplinary body or the legal aid authorities, but it is not one for exercise of the wasted costs jurisdiction.
- If the answer to both questions is ‘yes’, should the court make an order; and if so what specific sum should be considered?
Even if these three conditions are satisfied the applicant still has to persuade the court to exercise its discretion to make a wasted costs order.
The words ‘improper, unreasonable or negligent’ are defined as follows:
- ‘Improper’ covers conduct which might lead to disbarment, striking off or other serious professional penalty; however, it is not restricted to this and might include other conduct stigmatised by the court in appropriate circumstances;
- ‘Unreasonable’ includes conduct which is vexatious or harasses other parties, but it does not include an approach which merely leads to an unsuccessful result or which a more cautious representative might not have adopted;
- ‘Negligent’ is to be approached in a non-technical way. A legal representative may come within the definition by failing to act with the competence reasonably expected of a member of the legal profession.
A legal representative is not to be regarded as acting improperly, unreasonably or negligently by pursuing a hopeless case for the client, providing this does not represent an abuse of the court's process. It is the responsibility of a lawyer to present the case and of the court to judge it.
