What A Waste: Costs Against An Advocate

The recent Court of Appeal case of Mubarik v. Mubarak [2009] JCA 016 has highlighted, for perhaps the first time in recent years, that where a party considers that the opposition's advocate has inadequately prepared for trial, and has been generally sloppy in his approach to the litigation, then it is entitled to make an application for a wasted costs order personally against that advocate.

The case of Mubarik has an unhappy history and relates to the acrimonious divorce proceedings between the parties. In this instance, Mrs Mubarak made an application firstly, for indemnity costs against Mr Mubarik's unsuccessful appeal, and secondly for an order that Mr Mubarik's advocate should bear part of those costs personally upon an indemnity basis.

Discretion Of The Court

It is trite law that the question of costs lies at the discretion of the court, and that the overriding objective in considering costs is to do justice between the parties (Watkins v. Egglishaw [2002] JLR 1). Historically, in Jersey, costs have only been awarded on an indemnity basis in exceptional circumstances (Muir v. Ann Street Brewery [1993] JLR 395), if there are special and unusual features in the particular circumstances of the case (Jones v. Jones [1985-86] JLR 40) or if the suit is deemed to be an abuse of the process of the court. The Court of Appeal referred to the judgment of Millet, J. in the case of Macmillan v. Bishopsgate (Unreported 1994):

"The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion to what is at stake, may also expect to be ordered to pay costs on an indemnity basis if they lose, and to have part of their costs disallowed if they win. Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fended or circumscribed beyond the requirement that taxation on an indemnity basis must be 'appropriate'."

The situations in which the court will make an order of costs against an advocate vary and in many cases the misconduct is often linked with hopeless defences or doomed claims or indeed where the advocate has failed to take reasonable measures to ensure that the litigant has adequately complied with orders of the court.

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