Wasted costs: Cross-examining a legal representative
October 28, 2021
Mr Justice Saini has determined that the court does have the power to order a legal representative to attend court to be cross-examined as to the contents of their witness statement.
The claimant sought damages for noise-induced hearing loss in negligence and for breach of statutory duty against six defendants. On the day of trial, the claimant’s counsel informed the court that the claimant had not signed a Part 18 response and that the contents of the response were not factually accurate. The claimant’s counsel indicated that the claimant would discontinue the proceedings. Counsel for the defendants made oral applications to disapply QOCS and/or make wasted costs orders against the claimant’s solicitors, pursuant to CPR 46.8. The trial Judge ordered:
- The claimant do pay the defendants’ costs of the action.
- The determination of whether this costs order should be enforceable against the claimant and/or should be paid by the claimant’s solicitors be the subject of a hearing before HHJ Godsmark QC or another judge.
- Formal applications for costs to be enforceable against the claimant or his solicitors were to be made.
- Any response from the claimant’s solicitors was to be from the supervising partner with conduct of the claim.
At a CMC, Judge Godsmark QC ultimately directed that the claimant’s solicitor attend the costs hearing to be cross-examined by the defendants. At that hearing, counsel for the claimant’s solicitors had submitted to the Judge that the solicitor would probably be required to give evidence at the hearing of the relevant applications. No point was taken as to whether or not the Judge had the power to make such a direction.
Mr Justice Saini rejected the submission that the wasted costs regime in CPR 46.8 is a complete procedural code which excludes the court’s CPR 32.7 power to require anyone who gives evidence in writing to attend for cross-examination.
In determining that HHJ Godsmark QC properly exercised his discretion, Mr Justice Saini stated:
42. As I indicated at the outset of this judgment this case has the odd feature that the judge’s exercise of discretion is being impugned on the basis of arguments which were not only not put to the judge, but which are in fact diametrically opposed to the arguments put to him. As explained by Lloyd LJ in the case of Allen v Bloomsbury Publishing Ltd  EWCA Civ 943, it is inappropriate to criticise the exercise of discretion by a judge on the basis that he failed to consider matters which were never raised before him. As will already be clear, the position of the Firm is much more unattractive than even this, because the Firm was positively submitting Mr Sarwar’s attendance was potentially required.
43. At the risk of stating the obvious, it is impossible to review the discretionary decision of the judge because nobody was saying the discretion should be not exercised to require Mr Sarwar’s attendance, so the judge did not have to explain his decision. Therefore, the normal approach on appeal cannot be applied.
44. Serious issues arise as to whether this (and indeed the appeal on jurisdiction) should be entertained at all. I refer to the White Book, Vol.1, para. 18.104.22.168 and Singh v Dass  EWCA Civ 360. It is arguably abusive to mount an appeal on the present circumstances.
45. However, being generous to the Firm, I have considered the matter essentially de novo, based on the facts which have been argued before me. As I shall explain, I have no doubt that it is a proper exercise of discretion to require Mr Sarwar’s attendance.
46. A number of matters are particularly relevant. First, the Firm is no longer acting for Mr Hunt. Second, it appears to be the case that privilege has been waived and there is no restriction on the Firm giving a full account of the position between itself and Mr Hunt. Third, it is clear to me on even a brief perusal of the witness statements that there are radically different accounts given by Mr Sarwar (the Firm) and Mr Hunt as to the facts which are central to certain of the issues to be determined by the judge on the hearing of the Defendants’ applications. It may well be that it is rare to require the attendance of a representative to be cross-examined on an application of this type but in my judgment it is difficult to see how these issues could be resolved in a fair and proportionate way without oral evidence from Mr Sarwar. Fourth, I am confident that the nature of these issues is that they can be managed in accordance with the Overriding Objective, so as to avoid the hearing of the applications becoming a substantial piece of satellite litigation. That is one of the concerns which motivated Bingham LJ in his cautionary observations in the Ridgehalgh case.
47. Having allowed the Firm to make new and fresh submissions to me and have a “second bite at the cherry”, this is overwhelmingly a case where Mr Sarwar should attend for cross-examination. The Judge’s decision was clearly correct.
This decision is a significant one for any defendants seeking wasted costs orders against a claimant’s solicitors. The full judgment is available here.
Watch this space, the Court of Appeal have given permission to appeal.