UK: Statement on Behalf of Bernard Weatherill QC & Josephine Hayes
Last Updated: 27 June 2002

The House of Lords today upheld the appeal of two barristers, Bernard Weatherill QC and Josephine Hayes, against the Wasted Costs Order made against them in November 2000.

The barristers, represented by City law firm Clyde & Co, argued that, as the application for wasted costs was made, not by their own clients, but by their opponents, the Order should not have been made against them because their clients had declined to waive their rights of privilege and confidentiality. Accordingly, the barristers were precluded from defending themselves.

The Wasted Costs Application arose from a High Court claim by Roger Medcalf for an account for the profits from the successful TV game show "The Big Break". Mr Weatherill and Miss Hayes were acting for two of the Defendants to that action, Terry Mardell and the Terry Mardell Organisation Ltd, in their appeal against the first instance decision in Mr Medcalf’s favour. Mr Weatherill and Miss Hayes were instructed by their clients to plead allegations amounting to fraud and other impropriety on the part of the Claimant.

In his application for a Wasted Costs Order against the Defendants’ barristers, the Claimant asserted that, contrary to the requirements of the Bar Code of Conduct, the barristers did not have material supporting the pleaded allegations at the time they
were drafted. The barristers argued that they would like to be able to demonstrate to the Court what material they had to support the pleaded allegations, but that they were precluded by their duty to protect their former clients’ privilege and confidentiality, from explaining themselves. The barristers made several attempts to get their former clients to waive their rights of privilege and confidentiality, but to no avail.

The House of Lords has agreed that, in those circumstances, it would be unfair to make a Wasted Costs Order against barristers who were not in a position properly to defend themselves. Accordingly, the Lords have upheld the barristers’ appeal.

Angela Horne, the commercial litigation partner, acting for the barristers said of today’s decision "It is a victory for common sense. The majority of the Court of Appeal, which made the Order against the barristers, were prepared to assume that the barristers did not have material before them to justify the allegations they pleaded, without knowing whether or not they did, or what that material was. The House of Lords has agreed that it is unfair to make an assumption against a barrister in circumstances where he or she is precluded by law from defending him or herself against allegations of causing costs to be wasted by negligent or improper conduct. Mr Weatherill and Miss Hayes are delighted that justice has been done in this case, and only regret that the matter has had to be pursued to the House of Lords to achieve this result.

"The decision has, however, set a useful precedent for all such cases in the future, and it should stem the growing tide of applications for wasted costs against another party’s legal representative. The judgment of Lord Hobhouse, in particular, sets out the very limited circumstances in which it is appropriate to apply for, and make, an order against an opponent’s legal adviser. This decision firmly recognises a barrister’s duty to promote his client’s interests fearlessly, and without risk of personal sanction or financial penalty.

"My clients and I would like to thank, and pay tribute to, their counsel, Nicholas Davidson QC and Leigh-Ann Mulcahy, for their excellent advice and representation."

For further information please contact Angela Horne, partner, at Clyde & Co.

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