Costs – Wasted costs order – Adjournment – Appellant firm of solicitors acting for party in seeking to set aside warrant for possession – Counsel asking to see request for warrant and raising new point that incorrect completion of request invalidating warrant – Adjournment to deal with new point – Whether appellant acting unreasonably in failing to ask for production of request at early stage in proceedings – Whether wasted costs order justified – Appeal allowed
In 2004, the respondent council obtained a warrant for possession to enforce an order made in 1998 against one of its tenants; the tenant had moved out but her former partner, D, remained in occupation. D instructed the appellant firm of solicitors, which applied for D to be joined as a party to the proceedings and for the warrant to be set aside or suspended on various grounds. One of those grounds was that the possession order had been made more than six years previously, such that the respondents had been required to seek the court’s permission before applying for a warrant of possession based upon that order, and that, in the absence of such permission, the warrant had been improperly issued.
On the hearing date, the matter was adjourned. However, in discussions on that date the judge indicated that the court records showed the warrant to have been issued two days before the six-year period expired. D’s application was consequently amended to remove any challenge to the validity of the request for the warrant. On the return date, counsel for D requested, for the first time, to see that request and, having seen it, he noted that it contained certain inaccuracies and sought to raise a new point that the warrant was defective because the request for it had been incorrectly completed. The judge gave permission for D to raise the new point and adjourned the hearing once again. D subsequently withdrew his application and agreed to give up possession. However, a further hearing was held to determine an application by the respondents for a wasted costs order against the appellant in respect of the costs of the adjournment.
That application was allowed on the ground that the appellant had acted unreasonably in failing to ask for a copy of the request or to take the new point at an earlier stage. A first appeal against that decision was dismissed. On a second appeal, the appellant contended that it had not asked for production of the request for a warrant at an earlier stage because it had had no reason to suspect any irregularity and the request had not been regarded by either side as being relevant to the grounds of D’s amended application.
Held: The appeal was allowed.
No order for wasted costs should have been sought or made against the appellant in respect of the costs thrown away by reason of the second adjournment. The judges below had found that the appellant’s conduct in omitting to ask for a copy of the request was unreasonable, without asking themselves why it was so. It was not. The only question originally raised in respect of the request for a warrant was whether it had been made within six years of the possession order. On the original hearing date, the appellant had been satisfied that the request had been made within that period, whereupon the issue of timing had been dropped; since the remaining grounds for D’s application had not included any assertion that the form of the request was defective, the appellant had not thereafter asked to see the request because it did not regard it as being relevant to the matters that remained to be argued. Although it could not be said that no reasonable solicitor would have asked to see the request in the circumstances prevailing after the first hearing date, and even if it were a shortcoming on the appellant’s part that it had not occurred to it that sight of the request might open up an new avenue of argument, such a shortcoming could not fairly be castigated as constituting “unreasonable” conduct on its part involving a breach of duty to the court, such as to justify a wasted costs order against it.
Robert Marven (instructed by Hallam-Peel & Co) appeared for the appellant; Donald Broatch (instructed by the legal department of Southwark London Borough Council) appeared for the respondents.
Sally Dobson, barrister
