UK: The Wasted Costs Jurisdiction: A Review

Last Updated: 21 August 2008
Article by Clive Brett and Shao Inn Foster

Following Ridehalgh v Horsefield (1994), 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 costs.

This three-stage test is now incorporated in the Practice Direction to Part 48 of the Civil Procedure Rules. The court has a discretion to make a wasted costs order, but it will not make such an order unless it considers that all three parts of the test have been met.

Although the test was clearly set out in Ridehalgh (and was later approved by the House of Lords in Medcalf v Mardell (2002)), several first instance decisions have recently been overturned on appeal, on the basis that the test had been incorrectly applied (Ratcliffe Duce & Gammer v L Binns t/a Parc Ferme (2008) and Mitchells (A Firm) v Funkwerk Information Technologies York Ltd (2008)).

Summary nature of remedy

The procedure to be followed in determining applications for wasted costs must meet the requirements of the case at hand but the procedure must be as simple and as summary as fairness permits. An oral hearing may not always be necessary. In Re Thomas Boyd Whyte Solicitors and Re Haskell Solicitors (2007), it was found that a judge could make a wasted costs order against a legal representative without an oral hearing as long as the legal representative had notice of the judge's intention and had a full opportunity to make representations.

In the recent case of Hedrich & Others v Standard Bank London Ltd & Others (2008), the Court of Appeal made clear that a wasted costs order is a summary remedy that should be capable of being dealt with in hours not days. The Court held that although litigants should not suffer loss resulting from misconduct of legal representatives, this type of satellite litigation should be rigorously confined.

Assessment of the legal representative's conduct

In Ridehalgh, the Court of Appeal stated that a legal representative has not acted "improperly, unreasonably or negligently" merely because he acted for a party who had pursued a case that was doomed to fail. However, a legal representative should not lend his assistance to proceedings which are an abuse of process.

The concept of the "hopeless case" was considered further in Dempsey v Johnstone (2003). It was held there that the appropriate test was whether no reasonably competent legal adviser would have evaluated the chance of success as being such as to justify continuing with the proceedings. In Mitchells Solicitors (2008), the court found that where it is alleged that the legal representative has presented a "hopeless case", a wasted costs order can only be made against him if he is shown not only to have acted improperly, unreasonably or negligently, but also to have lent assistance to proceedings which have amounted to an abuse of process or a breach of the legal representative's duty to the court.

In KOO Golden East Mongolia v Bank of Nova Scotia & Ors (2008), the fact that a claim had been abandoned on appeal did not mean that it had been pursued negligently. Where a party believes that the opposing side is pursuing a claim that is "doomed to fail", it should consider applying for the claim to be struck out rather than expecting to pursue wasted costs. In this case, the court found that there was no basis upon which a wasted costs order could be made as the claimant's conduct could not be categorised as negligent or unreasonable and as the issues surrounding the claim were not so straightforward that the outcome was a certainty.


Demonstration of a causal link between the conduct complained of and the waste of costs is also essential. The legal representative's liability is determined in part by assessing whether, but for the conduct complained of, the party seeking to invoke the wasted costs jurisdiction would be out of pocket to the extent of the costs in question (Brown v Bennett).

In D v H (2008), H entered into a settlement by consent where he agreed to pay his wife a lump-sum and all costs orders made in his favour against his wife were to be set aside. Prior to the settlement, H had brought a wasted costs application against his wife's legal representative in which he sought to recover the same costs to which he had waived his rights as a result of the settlement. The court found that H's agreement to forego costs had removed the causal link to the extent that H no longer had any loss to claim.

In KOO, the court found that part of the claim for wasted costs was misconceived as the defendant banks had not suffered any loss. There was every chance that the claimant would pay the costs, especially as they had paid a previous order for assessed costs. Here, not only were the costs in question the subject of assessment, no bill had yet been presented and no demand had yet been made by the defendant banks for payment at the time the application was brought, nor when it was heard.

In Hedrich v Standard Bank, disclosure of certain emails had been given by the claimant during the trial following which the claim was discontinued. When the defendant bank could not recover costs from the claimant it sought wasted costs from the claimant's solicitors on the basis that the late disclosure was due to the solicitor's negligence. The Court of Appeal dismissed the claim on the basis that the solicitor was not negligent and that by the time the relevance of the CD Rom containing the emails was plain, all of the costs had been incurred so causation had not been established.

Personal Circumstances of the professional may be taken into account

The exercise of the wasted costs jurisdiction is always subject to the discretion of the court. Even if the first two stages of the test are met, the court may still decline to make a wasted costs order. It is clear that when exercising their discretion, the courts will consider the effect of a wasted costs order upon the legal representative.

In R (on the application of Hide) v Staffordshire County Council (2007), the court refused to make an order for wasted costs against the solicitor advocate even though it had been satisfied that her behaviour was unreasonable and negligent. It also found that the action was unnecessary and doomed to failure but there was a significant risk that a wasted costs order would cause the legal representative to become bankrupt. The court thought that this would be a disproportionate consequence.

A finding of liability for wasted costs could also result in loss of reputation for the legal representative. In Re 9MD Ltd: Southcombe & Anor v One Step Beyond (2008), the court of appeal stated that solicitors were entitled to take steps to protect their reputation and should not be held to ransom by a wasted cost application, even where the sums in issue were modest.

In Re Boodhoo (2007), a wasted costs order had been made against a solicitor who had withdrawn from the case on the day of the trial as he had no instructions from his client. On appeal, the court quashed the wasted costs order having found that the Recorder had failed to appreciate the professional difficulties faced by the solicitor in the circumstances. A decision to withdraw should be respected where the solicitor genuinely believed that he could not properly represent his client.

Although the courts remain willing to make wasted costs orders, recent decisions have often been in the favour of solicitors facing such applications. It is clear that the courts are exercising their jurisdiction to grant wasted costs orders with care.

Practical tips

The burden of showing that a wasted costs order should be made lies on the applicant. However, when on the receiving end of a wasted costs application, the following should be borne in mind:

  • Where it is alleged by the other side that a "hopeless case" has been pursued, an effective counter may be to argue that the applicant should have applied to strike out the claim at the earliest opportunity.

  • Is the response hampered by the client's refusal to waive privilege? If so, it is likely that the court will make allowances for this and may give the legal representative the benefit of the doubt, especially where there is a real risk of unfairness. It is only when, with all allowances made, the legal representative's conduct is plainly unjustifiable that a wasted costs order is usually considered appropriate.

  • The costs incurred must have been as a result of the legal representative's conduct. Consider whether there has been a break in the chain of causation.

  • Consider whether there has in fact been a loss suffered, or whether the costs are "otherwise recoverable". If at the time the wasted costs proceedings were commenced or when they are heard the party who is liable to pay assessed or agreed costs has not failed, refused or indicated an unwillingness or inability to pay, it may be possible to argue that no loss has been suffered.

  • When exercising their discretion, the courts have shown some sympathy for the legal representative. If granting the order may lead to a disproportionate outcome, then there may be scope to resist.

If a wasted costs order is made, consider carefully whether the court or tribunal has correctly applied the Ridehalgh test.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.