The Supreme Court Costs Office

No.6 of 2005

 Anita Gray v Going Places Leisure Travel Ltd

 7 February 2005

 Court of Appeal (Brooke, Latham and Neuberger LJJ)

The Claimant instituted proceedings against the Defendant under cover of a public funding certificate in 1998. The case was allocated to the multi track, and on 5 December 2002 was listed for hearing on 4 and 5 February 2003. However, two days before that directions hearing, the Claimant’s public funding certificate had been discharged, on the basis of the Legal Services Commission’s costs benefit analysis of those proceedings. The Claimant applied for a review of that decision, and, on 20 January 2003, the Defendants learnt of the discharge of the certificate.

The trial Judge, of his own initiative, looked at the papers on 29 January 2003 and ordered that the matter should remain listed for trial on 4 February, and that if the Claimant did not lodge an indexed bundle, as directed by the order of 5 December 2002 by close of business on 31 January 2003 and attended for trial, the action should be struck out. He did however direct that the Defendants’ witnesses should remain available, but need not attend court until instructed to do so.

The Claimant was neither present or represented on 4 February, and the action was struck out with an appropriate costs order against the Claimant.

Five months later the Defendants solicitors issued an application for a wasted costs order against the Claimant’s solicitors before a District Judge. There was an exchange of witness statements and so forth, and ultimately, on 26 February 2004, the District Judge made the order for wasted costs sought on behalf of the Defendant, and summarily assessed those costs.

The solicitors concerned appealed the wasted costs order to the Judge, who did not deal with the merits of the quantum, but with two connected questions, namely whether an appeal from the District Judge’s decision lay direct to the Court of Appeal or to him, and whether it had been appropriate for a District Judge, rather than him, to have made a wasted costs order. The Circuit Judge held that the District Judge had had no jurisdiction to make the wasted costs order, and accordingly discharged it, and his decision was upheld by the Court of Appeal.