IN THE HIGH COURT OF JUSTICE CO/4928/99
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Monday, 17th April 2000
B e f o r e:
MR JUSTICE JACKSON
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R E G I N A
LONDON BOROUGH OF BROMLEY & Anor.
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MR. ROBERT McCRACKEN and MR. JAMES PEREIRA (Instructed by Messrs. Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Applicant.
MR. GREGORY STONE Q.C. and MR. JAMES STRACHAN (Instructed by London Borough of Bromley Legal Department) appeared on behalf of the First Respondent.
MR. MATTHEW HORTON QC and MR. CHRISTOPHER BOYLE (Instructed by Messrs. Lawrence Graham) appeared on behalf of the Second Respondent.
J U D G M E N T
Crown CopyrightMonday, 17th April 2000
COSTS HEARING JUDGMENTS
1. MR. JUSTICE JACKSON: I realise that any judge at first instance, when dealing with an application for permission to appeal, must take a fresh look at his judgment and must recognise that from time to time all first instance judges fall into error.
2. Nevertheless, even directing my mind to that aspect, I consider that the proposed appeal in respect of the reserved matters point and the Caborn statement do not have sufficient prospect of success to merit permission to appeal.
3. Accordingly, I refuse permission to appeal.
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4. MR. JUSTICE JACKSON: This is an application by the first respondent for a wasted costs order against the legal representatives of the applicant. The facts giving rise to this application are apparent from the judgment which I gave on 3rd April, and I shall not repeat them this morning.
5. Mr. Stone, on behalf of the first respondent, submits that his clients are entitled to a wasted costs order against firstly Mr. McCracken, counsel for the applicant, and secondly Richard Buxton, solicitor for the applicant, on two bases. The first basis is the deficiencies in the Form 86A which was settled by Mr. McCracken and filed and served by his instructing solicitors. The second basis is the failure of the legal representatives to disclose to the court or to the lawyers for other parties on 29th November 1999 the decision of Richards J. in the CPRE case, the details of which are set out in my earlier judgment.
6. Applications for wasted costs are made pursuant to section 51 of the Supreme Court Act 1981, as amended by the Courts and Legal Services Act 1990. In Ridehalgh v. Horsefield  3 All E.R. 848, the Court of Appeal set down the guiding principles which are to be followed when applications for wasted costs are made at the conclusion of civil litigation. The Court of Appeal stipulated that there should be a two-stage procedure. Firstly, the applicant for wasted costs must seek an order that the respondents in respect of wasted costs show cause, and secondly, if such an order is made, then at a later hearing the merits of the claim for wasted costs are fully gone into.
7. Section 51 of the Supreme Court Act 1981 provides as follows, so far as material:
"(6) In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet the whole of any wasted costs or such part of them as may be determined in accordance with the rules of court.
(7) In subsection (6), 'wasted costs' means any costs incurred by a party--
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or
(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay".
8. I deal first with the first basis of Mr. Stone's application; that is, the deficiencies in the Form 86A as drafted by Mr. McCracken. The deficiencies in the Form 86A are set out in Part 5 of the judgment. That section of the judgment identifies those criticisms of the Form 86A which were successful at the trial. It is to be contrasted with Part 6 of the judgment, which sets out those criticisms of the Form 86A which were unsuccessful.
9. The first matter which I have to consider is whether it can be said that the drafting of the Form 86A by counsel was improper, unreasonable or negligent in the light of those deficiencies which have been accepted in my earlier judgment. It is right at the outset to remind myself of the test for professional negligence which is applicable to all professions, whether medical, legal or anything else. In Saif Ali v. Sydney Mitchell & Co.  A.C. 198, Lord Diplock defined the test in these terms:
"Advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well informed and competent would have given or done or omitted to do ... An error of judgment such as no reasonably well informed and competent member of that profession could have made."
10. When dealing with any claim for professional negligence, it is vital that judges apply that test of negligence and do not slip into characterising every error of judgment which is made by a professional person as constituting negligence.
11. In my judgment, errors of judgment were made by the advisers of the applicant. There was an over-enthusiasm for the applicant's case which led to some loss of objectivity and which detracted from the Form 86A in the respects earlier identified. However, I do not consider that the mistakes made in the drafting of the Form 86A crossed the boundary identified by Lord Diplock in Saif Ali v. Sidney Mitchell & Co., and I do not consider that those mistakes constitute professional negligence.
12. Accordingly, the first limb of the application made by the first respondent fails.
13. I come now to the second limb of the application: the omission made by the applicant's solicitors and counsel to disclose the decision in CPRE on 29th November 1999 to the other lawyers in the case and to the court. Whether that omission could properly be characterised as 'improper' or not is something into which I need not enquire. It seems to me that this head of claim is doomed to failure on causation. I say that because to my mind it is perfectly clear, given the history of this litigation and given the time that was available on 29th November, that whether or not all parties were informed about Richard's J. decision in CPRE, events would have taken precisely the same course which they took; namely, the application to set aside permission would have been adjourned until the hearing of the substantive proceedings. It will be recalled that the hearing in front of myself occupied a period of four days, one half of which was devoted to the set-aside application. That application could not sensibly have been dealt with in the time available before Sullivan J. on 29th November 1999.
14. Therefore, drawing the threads together, I come to the following conclusions. The first basis of the application is essentially founded on an allegation of professional negligence in the drafting of the Form 86A. That fails because the threshold of professional negligence has not been crossed. The second basis of the application is impropriety in failing to disclose a known relevant authority. That fails, without consideration of the issue of propriety, on the matter of causation.
15. Accordingly, I dismiss the application for wasted costs.
16. I would finally say this. I have dismissed this application essentially upon consideration of Mr. Stone's application and his skeleton argument. I did not call upon Mr. McCracken to make submissions in reply. I have therefore not heard anything which he may say on the propriety or impropriety of what happened on 29th November, because that is not germane to the decision which I make.