The Supreme Court has dismissed an appeal by the Minister for Justice and the Refugee Applications Commissioner seeking a wasted costs order against solicitors who represented an anonymised infant in a judicial review case concerning a refused refugee-status application.
The appeal concerned the High Court’s refusal to make the solicitors personally liable under Order 99, rule 7 of the Rules of the Superior Courts. The High Court had instead ordered the applicant’s next friend to pay the respondents’ costs of the proceedings, and the respondents to pay the solicitors’ costs of the wasted-costs application.
The judicial review was brought in April 2009. At the time, courts had held that, absent exceptional circumstances, a decision by the Refugee Applications Commissioner should be challenged by an appeal to the Refugee Appeals Tribunal rather than judicial review. The applicant’s solicitors told the Chief State Solicitor that they considered the case distinguishable and wanted to proceed. Their letter set out alleged fair-procedure and other legal breaches, which they argued could justify judicial review.
On the hearing day, the applicant’s counsel sought an adjournment. After the High Court refused it, the case was withdrawn and the costs issue was put off. The Minister and Commissioner later argued that the solicitors had prolonged a case without proper justification, failed to comply with court directions and wasted court time. The solicitors’ account, given in an affidavit, was that they acted on counsel’s advice and on the applicant’s instructions; they sought an adjournment because similar cases had been unsuccessful, and withdrew when it was refused.
The Supreme Court applied the established test that a wasted costs order requires solicitor misconduct involving a breach of duty to the court, or at least gross negligence in relation to that duty. It noted the solicitors’ letter explaining why they believed the case could proceed, the affidavit account of events and the fact that they acted on counsel’s advice.
The Court said solicitors must comply with practice directions and that wasted costs orders remain an important means of enforcing them. But it found a factual basis for the High Court’s conclusion that there had been no misconduct. The ordinary costs order against the losing party applied; the appeal court did not overturn the refusal to make the solicitors personally liable. The Court also said the delay was not, in the circumstances, a basis for a wasted costs order. It dismissed the appeal.