The recent Court of Appeal case of Mubarik v.
Mubarak  JCA 016 has highlighted, for perhaps the
first time in recent years, that where a party considers that the
opposition's advocate has inadequately prepared for trial, and
has been generally sloppy in his approach to the litigation, then
it is entitled to make an application for a wasted costs order
personally against that advocate.
The case of Mubarik has an unhappy history and
relates to the acrimonious divorce proceedings between the parties.
In this instance, Mrs Mubarak made an application firstly, for
indemnity costs against Mr Mubarik's unsuccessful appeal, and
secondly for an order that Mr Mubarik's advocate should bear
part of those costs personally upon an indemnity basis.
Discretion Of The Court
It is trite law that the question of costs lies at the
discretion of the court, and that the overriding objective in
considering costs is to do justice between the parties
(Watkins v. Egglishaw  JLR 1). Historically,
in Jersey, costs have only been awarded on an indemnity basis in
exceptional circumstances (Muir v. Ann Street
Brewery  JLR 395), if there are special and unusual
features in the particular circumstances of the case (Jones
v. Jones [1985-86] JLR 40) or if the suit is deemed to be
an abuse of the process of the court. The Court of Appeal referred
to the judgment of Millet, J. in the case of Macmillan v.
Bishopsgate (Unreported 1994):
"The power to order taxation on an indemnity basis is
not confined to cases which have been brought with an ulterior
motive or for an improper purpose. Litigants who conduct
their cases in bad faith, or as a personal vendetta, or in an
improper or oppressive manner, or who cause costs to be incurred
irrationally or out of all proportion to what is at stake, may also
expect to be ordered to pay costs on an indemnity basis if they
lose, and to have part of their costs disallowed if they win.
Nor are these necessarily the only situations where the
jurisdiction may be exercised; the discretion is not to be fended
or circumscribed beyond the requirement that taxation on an
indemnity basis must be 'appropriate'."
The situations in which the court will make an order of costs
against an advocate vary and in many cases the misconduct is often
linked with hopeless defences or doomed claims or indeed where the
advocate has failed to take reasonable measures to ensure that the
litigant has adequately complied with orders of the court.
Failed To Take Reasonable Measures
In this case however, Mrs Mubarak sought a wasted costs order on
the grounds that the advocate concerned had not been properly
rehearsed in his arguments or knowledge of the law, and that he had
sought to seek instructions from his instructing solicitor or from
English counsel on a "wholly unacceptable number of
Under Article 2(1) of the Civil Procedure (Jersey) Law
1956, the court may hold liable any non-party it considers
ought to pay costs.
The court in Mubarik made reference to the case
of Ridehalgh v Horsefield  Ch 205, which
"the court will make a wasted costs order against a
solicitor or barrister in civil proceedings if it can be shown
that: the legal representative has acted improperly, unreasonably
or negligently; his conduct has caused a party to incur unnecessary
costs; or it is just in all the circumstances to order him to
compensate the party for the whole or part of those
Justify Wasted Costs
It is for the applicant to make out that an order for wasted
costs is justified in the circumstances. Ultimately, the court in
this case did not agree with Mrs Mubarik's submissions but what
is clear, as the court said, "whilst an award against Counsel
will be exceptional, there is no doubt that it can be made"
and an aspect of the Royal Court's power is to "discipline
its officers for behaviour which tends to defeat the course of
justice" (Skinner v Myles  JLR 98).
It should obviously also be kept in mind that any finding by the
court that a wasted costs order should be properly levied against
an advocate may give rise to allegations of professional
misconduct. Further, it may also result in the client bringing a
claim for professional negligence against the advocate
This article first appeared in the spring 2009 issue of the
Appleby Jersey's Resolution newsletter.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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