Appeal No. UKEAT/0515/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9th February 2011
	   Judgment handed down on 20 May 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
SIR ALISTAIR GRAHAM KBE
MR. P. SMITH

WILSONS SOLICITORS (IN A MATTER OF WASTED COSTS)	APPELLANT

(1) CRAIG AND SYBIL JOHNSON
(2) BTSTU LTD. (In Liquidation)
(3) BTS GROUP LTD.
(4) ALEXANDER McCALLUM	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	JOHN WILSON
(Solicitor)
Of:
Wilsons Solicitors
52 Town Street
Farsley
Leeds 
LS28 5LD
	
For the Claimants	NICHOLAS PRICE
(of Counsel)
Instructed by:
Morrish Solicitors LLP
Oxford House
Oxford Row
Leeds
LS1 3BE	
For BTSTU Ltd	No representation
	
For BTS Group Ltd and Mr. McCallum	Written submissions

SUMMARY

PRACTICE AND PROCEDURE – Wasted costs

Judge made wasted costs order in respect of a CMD which she believed had been abortive because the Appellant solicitors had not properly prepared their case – Order upheld – Observations on desirability of tribunals expressly referring to the relevant principles in their reasons

THE HONOURABLE MR JUSTICE UNDERHILL

1.	This is an appeal against a wasted costs order made by Employment Judge Cox in the Leeds Employment Tribunal.  The circumstances in which the order came to be made need to be set out in some detail, as follows.  

2.	On 6 August 2009 the Claimants, who are a husband and wife called Craig and Sybil Johnson, commenced proceedings in the Employment Tribunal against two associated companies, BTSTU Ltd and BTS Group Ltd, and a Mr. McCallum who was said to be the ultimate owner of both companies: we will refer to these as the First to Third Respondents, as they were in the Tribunal.  The Appellant firm, to which we will refer as “Wilsons”, was named in the ET1 as the Claimants’ solicitors.  

3.	The ET1 form, which was completed on behalf of both Claimants, had the boxes ticked for unfair dismissal, sex and disability discrimination, redundancy payments and a variety of claims for sums due.  Details were said to be given in the separate Particulars of Claim.  These are poorly pleaded.  It is unnecessary for present purposes that we analyse them in any detail.  Very broadly, the position is that Mr. Johnson was a tree surgeon who in April 2008 sold his business to the First Respondent, which was owned by the Second Respondent.  He and Mrs. Johnson became employees, ostensibly of the First Respondent, although it is suggested in the Particulars that it was acting in that regard as agent for the Second Respondent.  Mrs. Johnson’s employment was terminated on 9 February 2009 under the terms of a compromise agreement.  On 7 May Mr. Johnson was summarily dismissed, ostensibly for redundancy, but the pleaded case is that at or around the date of termination the First Respondent’s undertaking was transferred to the Second Respondent in circumstances attracting the operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).  The dismissal of Mr. Johnson is said to be both ordinarily unfair and “automatically” unfair by reference to section 103A of the Employment Rights Act 1996.  There is also an alternative claim for unlawful detriment pursuant to section 47B.  Although that broad outline is clear enough, there are a number of obscurities about precisely how the case is put, and very little detail of any kind is pleaded.  As for the claims of discrimination, these are frankly obscure.  The claims appear – though this is not entirely clear – to be not of “primary” discrimination but of victimisation contrary to, respectively, section 4 of the Sex Discrimination Act 1975 and section 55 of the Disability Discrimination Act 1995; but the protected acts relied on are not identified, nor is it clear what the acts complained of are apart from Mr. Johnson’s dismissal.  

4.	At the time that the claim was presented the First Respondent was in liquidation.  The liquidator instructed a firm called Birketts.  The Second and Third Respondents jointly instructed Ashton Graham (“AG”).  AG lodged an ET3 on behalf of their clients on 7 September 2009.  They complained of the deficiencies in the Particulars of Claim and on 14 September they served an extensive request for further information.  Wilsons replied, tacitly acknowledging that the Second and Third Respondents were entitled to at least some of the information requested – as they plainly were – but they said that they preferred to supply it by way of an amendment of the Particulars of Claim.  AG wrote to the Tribunal on 16 October seeking an order for the further information requested.  By that time a case management discussion had been fixed: the initial date was 8 October, but it was re-fixed by agreement for 12 November, with a time estimate of two hours.  The notice in the usual way emphasised the importance of the parties being ready to discuss all aspects of the case, including giving any necessary clarification of the scope of the issues.  Wilsons wrote to the Tribunal on 21 October reiterating that they preferred to deal with the request for further information by an amendment which would take account of the questions raised.  An Employment Judge directed that that issue could be dealt with at the CMD.  
5.	On the evening of 9 November, i.e. three days before the hearing, the Appellant e-mailed to the Tribunal and to the Respondents’ solicitors a copy of the proposed Amended Particulars of Claim.  Again, it is unnecessary that we analyse them in detail.  They are not in the ordinary sense an amendment but re-plead the claim from scratch.  They make clear that an unfair dismissal claim is being advanced not only for Mr. Johnson but for Mrs. Johnson, notwithstanding that on the face of it her contract had been voluntarily terminated in accordance with a binding compromise agreement and that the termination had in any event occurred more than three months before the presentation of the claim.  More detail was now given of the protected disclosures relied on for the purpose of the whistleblower claim (though they did not correspond to the nature of the case indicated in outline in the earlier pleading) and of the protected acts for the purpose of the victimisation claim; but at several points they remained decidedly sketchy.  

6.	The CMD duly took place, by telephone, on 12 November 2009 before Employment Judge Cox.  Mr. Wilson of the Appellant firm attended for the Claimants.  Solicitors from Birketts appeared for the First Respondent and from AG for the Second and Third Respondents.  In her Reasons for the order now under appeal the Judge gave the following account of what happened at the hearing: 

“8.    At the Case Management Discussion, the Employment Judge reviewed the draft amended Particulars of Claim and found that they were still substantially incomplete and unclear.  Because of the large number of heads of claims, the fact that there were multiple Claimants and Respondents and the allegation of a transfer of an undertaking, it needed to be made clear which claims were made by which Claimant against the Respondent and on what legal basis the Second Claimant was alleged to be entitled to the benefit of a contract to which she was not a party, as against a Respondent that was also not a party.  The allegations of discrimination needed to identify the acts of unlawful discrimination, when they were committed and by whom, and what form of discrimination they were alleged to be.  In relation to the victimisation allegations, the ‘protected act’ needed to be identified.  In relation to the public interest disclosure allegations, it needed to be made clear what the qualifying disclosures were and on what legal basis they were alleged to be protected disclosures.

9.   Mr Wilson was unable, during the course of the Case Management Discussion, to provide any further details or clarity.  As a result, and having explained why the current draft was inadequate, the Judge made a detailed Order that the Claimants should file with the Tribunal their proposed individual amended Particulars of Claim particularising the legal bases of their claims”.

We should also refer to a letter from Mr. Outen of AG dated 25 November making an application for costs.  The letter says:

“At the CMD on 12 November 2009, Employment Judge Cox expressed dissatisfaction at the proposed amended Particulars, which were ‘all over the place’, ‘not good enough’ and still required ‘a lot of work to be done’ on them.  Employment Judge Cox made specific orders issued on the same date, stipulating the Claimants needed to serve updated and clear particulars of claim to accompany the application to amend the same.  The Case Management Discussion was aborted, and in the words of the Judge ‘for reasons not the fault of the Respondent’.”  

Mr. Wilson, who appeared for Wilsons before us, accepted that the Judge had made those observations.  

7.	As stated in AG’s letter, an Order was made on the same day requiring the Claimants within 14 days to serve “proposed individual amended Particulars of Claim”: the reference to “individual” is plainly in order to distinguish between the claims of Mr. and Mrs. Johnson, which were not sufficiently distinguished in the draft amended Particulars.  The matters to be covered by the Particulars are also prescribed in detail, but we need not set that out here.  The Claimants were required to identify clearly which claims were not included in the original ET1 and why.  The Order concluded:

“On receipt of those Particulars, an Employment Judge will consider whether sufficient details of the claims have now been provided to make it reasonable to order the Respondents to file amended responses and then convene a further Case Management Discussion in person [i.e. not by telephone] to finalise the issues in the claims and identify any preliminary issues that should be dealt with at a Pre-Hearing Review. At that Case Management Discussion, the Tribunal will identify whether any additional claims have been included in the amended Particulars that were not included in the original claim form and, if so, whether the Claimants should have leave to amend their claims accordingly.”

8.	Following the CMD both Birketts and AG – by letters dated 20 November and 25 November respectively – wrote to the Tribunal seeking an order for costs against the Claimants on the basis that the hearing had been wasted because of the inadequacies identified by the Judge.  AG’s letter set out the procedural history in some detail.  In both cases the application was under rules 38-47 of the Employment Tribunal Rules and Procedure – that is, the normal provision for costs orders against a party.  

9.	On 27 November 2009 Wilsons wrote to the Respondents and the Tribunal withdrawing Mrs. Johnson’s claims and seeking permission to amend the Particulars of Claim in accordance with a further draft, which – inevitably, since the parties were different – differed from that submitted on 9 November.

10.	On 7 December 2009 the Tribunal wrote to all the parties directing that there should be a further CMD on a date to be notified.  Six items were specified as being on the agenda.  We need only refer to the first and fifth, which read as follows:

“(1) Clarify the claims further and identify the issues to be determined (Judge Cox asks the Claimants to note that the proposed amended details of claim do not meet the requirements of paragraph 1 of the Order made on 12 November 2009 and invites them to submit re-amended details of claim by the date of a Case Management Discussion);

…

(5) Consider the application for costs of the Case Management Discussion on 12 November 2009; … .”

11.	On 18 October AG wrote to Wilsons and the Tribunal stating that the application for costs made in their letter of 25 November was to be treated also as an application for wasted costs against Wilsons.

12.	The further CMD directed on 7 December 2009 duly took place on 19 March 2010.  Mr. Wilson again attended for the Claimants, Mr. Sam Healy of counsel appeared for the First Respondent and Mr. Outen of AG again for the Second and Third Respondents.  Various substantive case management directions were made, with which we are not concerned for present purposes.  As regards costs, Birketts also applied for a wasted costs order.  The Judge ordered that:

“(1) The Claimants’ representative will pay the First Respondent £403 and the Second and Third Respondents a total of £660 in wasted costs in relation to the Case Management Discussion on 12 November 2009;

(2) The Claimants’ representative shall re-pay the Claimants’ costs that they have already paid in relation to the Case Management Discussion on 12 November 2009” 

13.	The Judge was asked for written Reasons for that decision.  We are told by Mr. Wilson, though we have not seen the documents, that the initial response from the Tribunal was that there was no obligation to give Reasons, but that he drew its attention to rule 48 (9).  The Judge then produced Reasons, which were signed on 30 April; but due to an administrative error they were not sent to Wilsons for several months.  

14.	Paras. 1-7 of the Reasons recite the history, broadly as we have done; and paras. 8 and 9, which we have already set out, give the Judge’s account of what happened at the CMD of 12 November.  Paras. 12-15 read as follow:

“12. It is apparent to the Tribunal that Mr. Wilson failed to prepare himself adequately for the Case Management Discussion of 12 November.  He was not in a position to discuss precisely what was being claimed or define what the factual and legal issues were, and the proposed amended Particulars of Claim did not assist but rather created further confusion.

13. As a result, the Case Management Discussion proved abortive.  The Tribunal is satisfied that the Respondents incurred costs as a result of the Claimants’ representative’s unreasonable and negligent acts and omissions, in filing to be in a position to clarify the nature of the claims his clients were making in spite of the facts that: the notice of the Discussion made clear that he needed to be in a position to clarify what was being claimed; both Responses had raised the adequacy of the particulars provided in the Claim Form; and a formal request had been made for further and better particulars.

14. Mr Wilson confirmed that he did not wish to make any submission on his firm’s ability to pay any Wasted Costs Order.

15. The Tribunal accepted that the First Respondent’s costs of preparing for and attending the abortive Case Management discussion on 12 November were reasonable and order the Claimants’ representative to pay £403 in that regard.  The Tribunal allowed three hours’ preparation and attendance time at £220 per hour in relation to the Second and Third Respondents’ solicitor’s costs, which included time spent analysing the proposed amended Particulars of Claim.”

15.	What is before us is an appeal against both elements of the Judge’s Order – that is, not only the order that it pay £1,036 to the Respondents but also that it repay any amount charged to the Claimants.  Mr. Wilson for the Appellant has appeared before us.  The Respondents have made it plain that, in view of the small sums involved, they do not wish to attend; but they have submitted a helpful skeleton argument to which we have paid full regard.  By an administrative oversight on the part of this Tribunal, the Claimants, who had ceased to instruct Wilsons before the appeal was lodged, were not properly notified of it.  By good fortune, however, they learnt of it informally and Mr. Nicholas Price of counsel was instructed to appear for them.  

THE LAW

16.	Rule 48 of the Employment Tribunal Rules reads (so far as material) as follows:

“(1)     A tribunal or Employment Judge may make a wasted costs order against a party's representative.
(2)        In a wasted costs order the tribunal or Employment Judge may:—

(a)      	disallow, or order the representative of a party to meet the whole or part of any wasted costs of any party, including an order that the representative repay to his client any costs which have already been paid;

(b)	         ... .

(3)     “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 representative; or  
(b)    	which, in the light of any such act or omission occurring after they were incurred, the tribunal considers it unreasonable to expect that party to pay.
(4)		…
(5)     A wasted costs order may … be made in favour of a representative's own client. ...
(6)     Before making a wasted costs order, the tribunal or Employment Judge shall give the representative a reasonable opportunity to make oral or written representations as to reasons why such an order should not be made. The tribunal or Employment Judge may also have regard to the representative's ability to pay when considering whether it shall make a wasted costs order or how much that order should be.

(7)-(8) …     
(9)     Where a tribunal or Employment Judge makes a wasted costs order it or he shall provide written reasons for doing so if a request is made for written reasons within 14 days of the date of the wasted costs order. …”

17.	As was made clear by the decision of Elias P. in Ratcliffe Duce and Gammer v Binns (UKEAT/100/08), in applying rule 48 tribunals should apply the principles developed in relation to the equivalent High Court jurisdiction.  The leading authorities are Ridehalgh v Horsefield [1994] Ch. 205 and Medcalf v Mardell [2003] 1 AC 120, but, as Elias P. observed in Ratcliffe, the principles deriving from them are helpfully summarised in Mitchells v Funkwork Information Technologies York Ltd. (UKEAT/0541/07).

THE APPEAL

18.	Wilsons’ original Grounds of Appeal were drafted before they had sight of the Tribunal’s Reasons.  Amended Grounds were served once those Reasons had been belatedly supplied.
  
19.	We should deal first with one overarching ground of appeal, albeit that it was not in the end pursued.  Both versions of the Notice of Appeal contained an allegation that Mr. Wilson had not been permitted at the hearing on 19 March to address the Tribunal on the question whether a wasted costs order should be made.  Para. 10 of the Amended Notice reads:

“The Tribunal did not ask the representative to make submission on wasted costs.  They [sic] only sought submissions on means.  This is recorded in para. 14 of the ET’s written reasons.”

20.	Contrary to that pleading, para. 14 of the Reasons does not record that submissions were sought only on the question of Wilsons’ ability to pay.  Nevertheless, in the face of the explicit allegation that that was so, on the sift I directed that comments be sought from the Respondents’ representatives and from the Judge.

21.	Mr. Healy supplied a clear and helpful note which stated candidly that his contemporary notes were incomplete but said that they expressly showed that:

“The EJ asked Mr. Wilson about his preparation for the TCMD [telephone case management discussion] on 12/11/09 and questioned him as to why he had not re-drafted the Particulars of Claim earlier.”

He said that there was then discussion of quantum and Mr. Wilson was asked about his firm’s ability to pay.  He concluded:

“I do not recall the EJ being asked by Mr. Wilson for an opportunity to make further submissions in relation to wasted costs or any other matter or the EJ refusing any such request.”

22.	Mr. Outen of AG wrote as follows: 

“The writer does not have a note of precisely everything that was said by the Judge or Mr. Wilson in relation to the cost application itself on the day, but it is the writer’s recollection that the Judge turned her attention to the costs application and our letter of application on the 25th November 2009 and made her own comments, indicating she was considering a Wasted Costs Order against Mr. Wilson for the fact that the Case Management Discussion which had taken place in November 2009 had had to be aborted due to his inability to articulate his client’s claims satisfactorily.  It is the writer’s recollection that Mr. Wilson disputed that there was any inadequacy in his handling of the CMD in November 2009.  The writer’s recollection is that Mr. Wilson did not accept any criticism or even potential for shortcomings in relation to the matters raised.  It was the writer who reminded the Judge that she was required to take account of Mr. Wilson’s means and Mr. Wilson had no submissions to put forward to the effect that he or his firm did not have the ability to pay.”

23.	The Secretary to the Tribunal wrote: 

“The Judge confirms that Mr. Wilson was given the opportunity at the Case Management Discussion (CMD) on 19 March 2010 to respond to the Respondents’ application that a costs or wasted costs order should be made in relation to the CMD on 12 November 2009.  The relevant part of the Judge’s notes state:

R1, R2, R3: Costs of CMD on 12.11.09
-	applies for costs order or wasted costs order
-	notice of CMD on 30.09.09 made clear issues needed to be clarified
-	requested vol. F&BP on 2.10.09
-	13.10.09 applied for Order
-	C said would be covered by amended particulars of claim
-	amended particulars inadequate and served 3 days before CMD

Mr. Wilson takes no issue as to his ability to pay.  Original ET1 drafted at short notice.  Doesn’t accept that amended particulars of claim submitted before CMD on 12.11.09 were inadequate.”

24.	Mr. Wilson’s witness statement reads, so far as material, as follows: 

“As it the case with a CMD there were various matters of a procedural and costs nature considered at this hearing.  On costs the tribunal decided to make an adverse order.  The Respondents had included in their comment aimed at the possibility of wasted costs.  My view was that I was there to represent my clients, not me.  It was for the tribunal to decide whether to put any issue of wasted costs to me and if it did then that should properly be dealt with separately.

Employment Judge Cox however announced that she had decided that she would make a costs order and it would be a wasted costs order against me.  She did not invite me to address the question as to the target of this costs order (i.e. the claimant or me).  

I recall the Employment Judge was interrupted by a representative of one of the Respondents to remind her that she was required to take account of my means.  She therefore asked me if I wished to make any submission on that and I said not.  She then proceeded to immediately pronounce the wasted costs order. 

I confirm the accuracy of the assertions of fact contained in the amended grounds of appeal.”

25.	It is clear from those materials that Mr. Wilson was indeed, as one would expect, given an opportunity to address the Judge on the substances of the issue of whether a wasted costs order should be made.  The responses from the Respondents’ representatives and the Judge are based on their contemporary notes and positively record Mr. Wilson disputing points put to him by the Judge on the adequacy of his pleadings and of his responses at the CMD on 12 November 2009.  Mr. Wilson’s witness statement, by contrast, is unsupported by notes and is far from unequivocal.  In his skeleton argument he did not persist in this ground of appeal; nor was it pursued in oral submissions.  We have nevertheless felt it right to deal with it fully in order that the Judge’s conduct should be vindicated; and also because there is some overlap with the remaining grounds of appeal.

26.	We turn to the Amended Grounds of Appeal.  These are somewhat diffuse and what appear to be essentially the same points are made in more than one place.  But essentially six points are made, which we will consider in turn.  It is convenient to note at this stage there is no challenge to the Judge’s core finding that the Amended Particulars were inadequate and that the  Claimants’ case was not adequately clarified in the course of the CMD.

27.	First, it is said that the Judge failed to consider whether the deficiencies which formed the basis of the order were the result not of negligence on Mr. Wilson’s part but of the nature of his instructions from his clients (see paras. 5 and 13 of the Amended Grounds).  Privilege had not been waived (see para. 8).  Mr. Wilson reminded us of the strong warnings expressed by the Court of Appeal in Ridehalgh about the risk of unfairness where a lawyer is made liable for costs without being able to tell the whole story: see at p. 237 B-E.  The same point is emphasised in Ratcliffe, at paras. 22-23.  The Grounds of Appeal hint at the existence of “a challenging client” and refer to “a representative trying to put forward a difficult case as best he could”.

28.	We have considered this point with care.  It is right that the Judge did not expressly consider the question of who was responsible for the state of affairs that prevailed at the CMD or, therefore, advert to the privilege issue.  It would have been better if she had done so.  Wasted costs orders are always, as the cases emphasise, a serious matter, involving as they do a finding of negligence (at least) on the part of the representative.  We have observed a tendency among some judges to deal with them without full reasoning.  That is to be deprecated.  In every case where a wasted costs order is made the judge should remind himself or herself of the terms of rule 48 and of the relevant principles appearing from the authorities; and it is good practice to do so explicitly in the reasons given.  But the Judge’s reasons here have to be assessed in the light of the submissions made.  It is clear from the materials that we have set out above that Mr. Wilson took no point before the Judge about the extent of his own responsibility for the defects in the presentation of his clients’ case: rather, he attempted to defend his pleadings and his conduct of the hearing on their merits.  There are of course strict limits on what he could have said: the whole point about privilege is that the representative is unable to disclose what passed between him and his client.  But in our view it would have been perfectly proper for Mr. Wilson, as he did before us, to draw the Judge’s attention to the well-known passages in Ridehalgh and/or Ratcliffe and to have made the point, as a matter of principle, that the Judge could not assume that deficiencies in the way the case was formulated were his responsibility rather than his clients’.  He did not do so.  Instead his case apparently was that his pleadings had been satisfactory and the case sufficiently clarified.  In those circumstances we do not think that the Judge can be blamed for not explicitly addressing the question of whether Mr. Wilson might not have been responsible for the defects which she found.

29.	In his skeleton argument, and in his oral submissions before us, Mr. Wilson sought to explain his failure to put any of the authorities before the Judge or to address her on any issue of principle, on the basis that he was entitled to expect a two-stage procedure.  He submitted that the most that should have happened at the hearing on 19 March was that, if a prima facie case for wasted costs was established, he should have been required to “show cause” on another occasion why an order should not be made.  He submitted that that followed from the observations of the Court of Appeal in Ridehalgh at p. 239 B-F.  We do not accept this submission.  The only relevant requirement of rule 48 is the requirement under para. (6) that the representative be given “a reasonable opportunity to make oral or written representations”.  That requirement was complied with.  Mr. Wilson was on notice that an application for wasted costs would be made at the hearing; and, as established above, he was given an opportunity to respond on that occasion.  There was no reason why a further stage was required.  The passage relied in Ridehalgh does not say anything different: though there is indeed a reference to two “stages”, the stages in question refer to the reasoning process and not to any procedural requirement. (We would also note that rule 48 (6) and O.62 r. 11 (4), which is the provision considered in Ridehalgh, are not in quite identical terms, though it is debatable whether there is any difference in substance.)

30.	Thus far we have established only that the Judge was not at fault in not expressly addressing in her Reasons a point which Mr. Wilson did not himself raise.  The question remains whether, even if no point was taken, the Judge was entitled to assume that the defects in the presentation of the case were Mr. Wilson’s fault rather than his clients’.  That might be a fair point in a case where the criticism of the representative was that he or she had been pursuing a hopeless case: in such a case it will generally be unfair to make any assumptions about responsibility.  But this was a case of a different kind.  The Judge’s criticism – see paras. 12 and 13 of the Reasons – was of the defects in the pleadings and of Mr. Wilson’s inability at the CMD to rectify those defects by clarifying the nature of his clients’ case.  No doubt in principle such failures could still be the fault of the client; but more typically they are the fault of the lawyer and result from failure to put the necessary work or thought into the preparation of the case.  A judge will normally be well-placed to recognise failings of the latter kind (cf. the observations of the Court of Appeal in Ridehalgh at p. 270 C-E).  The defects in the pleadings – both in their original and their amended form – were not of a kind which would typically flow from failures by the client: they were failures of analysis and accurate formulation.  Mr. Wilson, as we have said, raised no question about his responsibility for the defects: rather, he denied that they existed.  In those circumstances the Judge was in our view entitled to treat them as resulting from his negligence.

31.	 Secondly, it is said that the Judge “did not enquire into abuse of process”: see para. 6 of the Amended Grounds.  In Ridehalgh the Court of Appeal distinguishes between, on the one hand, pursuit of a hopeless case, for which the lawyer who has given proper advice (or, more pertinently, cannot be shown not to have done so) cannot be held responsible and, on the other, cases of abuse of process: see at pp. 233-4 (see also Ratcliffe at paras. 20-21).  But that distinction has no application to the case of defective preparation or presentation: the only question in such a case is whether the representative had indeed acted negligently, applying ordinary professional standards (see Ridehalgh at pp. 232-3).  

32.	Thirdly, Wilsons contend that the Judge failed to consider whether any costs had been wasted and that none in fact had been: Amended Grounds, para. 7.  That contention is hopeless.  The purpose of the CMD of 12 November 2009 had been to achieve a final definition of the issues.  As a result of Wilsons’ failures that did not occur: accordingly the Respondents’ costs of attendance (and the Claimants’ in instructing Wilsons for the CMD) were wasted.  

33.	Fourthly, it is submitted that the Tribunal was wrong to allow the Respondents to make submissions on the issue of wasted costs: Amended Grounds para. 9.  Mr. Wilson relied on a passage in Ratcliffe, at para. 14, where Elias P. criticised the judge for allowing the Respondents’ solicitors to comment on representations made by the solicitors against whom the order was sought.  He said that that was not an appropriate procedure, and continued:

“The Tribunal should give the representative a reasonable opportunity to make oral or written submissions as to why the order should not be made (rule 48 (7)). But whilst the other party may apply for an order - although the issue can exceptionally be raised by the Tribunal at its own initiative - it does not thereafter comment on the submissions, and it will never be appropriate for the receiving party to cross examine the representative against whom the order is being considered.”

That passage does not of course say that the other party can make no submissions at all: that would be a nonsense, since the application will have to have been supported by whatever submissions were necessary to raise a case to answer.  All that Elias P. is saying is that the other party should not be permitted to respond.  In fact, we venture to doubt whether even that is an absolute rule.  Elias P’s observation was made in the context of a case where the solicitor against whom the order was sought had not been present at the final hearing of the case and was therefore invited to make written representations as to why an order should not be made.  It is easy to see why the other party should not in those circumstances be allowed the last word.  In a case like the present, where the issue is decided at a hearing, some flexibility is appropriate.  But in fact we cannot see that the point arises at all.  There is no evidence that the Judge allowed the Respondents’ representatives to respond to Mr. Wilson’s submissions. 

34.	Fifthly, it is said that the issue of the costs wasted on 12 November 2009 should have been deferred to the end of the proceedings or in any event to some other occasion: Amended Grounds, paras. 11-12.  But this is a pure matter of case management, which can give rise to no issue of law.  The issue was self-contained and there was nothing irrational in the Tribunal dealing with it at any convenient point in the proceedings. 

35.	Finally, Mr. Wilson sought to argue that it was wrong to penalise the firm for its conduct of a telephone CMD, given the greater difficulty of dealing with complex issues on the telephone: Amended Grounds para. 16.  But that cannot amount to an error of law.

36.	For those reasons we dismiss this appeal.