PI Brief Update

Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB) - Philip Matthews, Temple Garden Chambers

16/10/24. What are the duties of claimants’ lawyers once a defendant serves evidence of fundamental dishonesty? By continuing to act on a CFA to trial, do those lawyers expose themselves to a wasted costs order? These issues were considered by Ritchie J in Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB).

The Claimant fell off Aberavon pier and sustained a moderately severe brain injury. She brought proceedings against the Defendant, who owned/occupied the pier. Liability was conceded at 2/3rds in the Claimant’s favour, but the Defendant contested quantum and asserted fundamental dishonesty. In the substantive judgment ([2024] EWHC 2415 (KB)), Ritchie J held that the Claimant had indeed been fundamentally dishonest, e.g., in relation to her level of mobility, her degree of light/noise sensitivity and her care requirements. The claim was, therefore dismissed, with costs ordered against the Claimant. However, per s. 57(5) of the Criminal Justice and Courts Act 2015, these costs were unenforceable up to the level of the assessed ‘honest’ damage, circa £600,000.

Perhaps disappointed with the above outcome, the Defendant sought to recover costs from the other side via an alternative route, namely a wasted costs application, against the Claimant’s representatives, Hugh James. Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB) considered that application.

As those reading will no doubt be aware, it is appropriate for the Court to make a wasted costs order against a legal representative, only if:

1. The legal representative has acted improperly, unreasonably or negligently;
2. The legal representative’s conduct has caused a party to incur unnecessary costs; and
3. It is just in all circumstances to order the legal representative to compensate that party for the whole or party of those costs.

In this case, the Defendant submitted, in outline, that the Claimant’s representatives had pursued a ‘speculative case,’ failed to be cross-check what the Claimant had told them against source documents (including social media posts) and failed to properly advise her of the risk that she would be found fundamentally dishonest. The Claimant’s representatives rejected the assertion that it should have ‘dumped’ the Claimant before trial on the basis of information that had later come to light.

Ultimately, Ritchie J held that it was not unreasonable for Hugh James to continue to represent the Claimant, and dismissed the application for wasted costs: -

“In my judgment, the Respondent is not to be held to have acted improperly, unreasonably or negligently simply because it acted for a party who pursued a claim which failed and was probably doomed to fail […] The fact that the Respondent was brave enough not to ‘dump’ the Claimant speak of the firm’s humanity and bravery, not of their negligence or unreasonableness” (§51).

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