Page 22 - PIC Magazine Issue 25 - Autumn-Winter 2025

The Conduct
of Solicitors
Professor Dominic Regan, Head of the Knowledge Hub at Frenkel Topping
r Justice Julian
Knowles penalised
adopt an uncooperative attitude
Mwhether to advise their clients to
solicitors for refusing
in unreasonably refusing to
to agree to a modest
agree extensions of time and in
extension of time in INVENIA
unreasonably opposing applications
TECHNICAL COMPUTING CORP V
for relief from sanctions. It is as
HUDSON (2024) EWHC 1481 (KB).
unacceptable for a party to try to take
”I understand that this litigation is
advantage of a minor inadvertent
hotly contested. But as I said during
error, as it is for rules, orders and
the hearing, civil litigation in the
practice directions to be breached in
modern era requires parties to behave
the fi rst place. Heavy costs sanctions
reasonably and that may include, on
should, therefore, be imposed on
occasion, agreeing to requests for
parties who behave unreasonably in
short extensions of time by the other
refusing to agree extensions of time
side even if they are not especially
or unreasonably oppose applications
happy to do so. Fighting a war of
for relief from sanctions. An order to
attrition over every inch of ground
pay the costs of the application under
is unreasonable and not the way
rule 3.9 may not always be suffi cient.
civil litigation should be conducted.
The court can, in an appropriate
The extension sought in this case
case, also record in its order that the
related to a minor sub-branch of the
opposition to the relief application
litigation. The extension sought was
was unreasonable conduct to be
modest; good reasons had been put
taken into account under CPR rule
forward; there was no prejudice to
44.11 when costs are dealt with at
the Applicant; and Master Gidden
the end of the case. If the off ending
granted it in any event. Costs should
party ultimately wins, the court
therefore follow the event.” This very
may make a substantial reduction
point was made in DENTON V
in its costs recovery on grounds
WHITE (2014) EWCA Civ 906 at
of conduct under rule 44.11. If the
paragraph 43.
off ending party ultimately loses, then
its conduct may be a good reason to
The court will be more ready in the
order it to pay indemnity costs. Such
future to penalise opportunism.
an order would free the winning party
The duty of care owed by a legal
from the operation of CPR rule 3.18
representative to his client takes
in relation to its costs budget.”
account of the fact that litigants
are required to help the court to
further the overriding objective.
Representatives should bear
this important obligation to the
court in mind when considering
Can one consent to an application
for relief from a sanction? Yes and at
paragraph 80 of DENTON the court
indicated that the innocent party in
2 of the 3 appeals ought to have
done so.
CPR 3.8.(1) declares that once a
sanction takes eff ect it remains in
place unless and until the court
grants relief. It is likely (though not
certain) that the court will grant
relief in the light of consent from
the respondent. A recent attempt
to launch proceedings for a wasted
costs order against a fi rm of solicitors
failed in WILLIAMS - HENRY V
ABP and HUGH JAMES (A FIRM)
(2024) EWHC 2415. It is necessary
to establish that the solicitor had
acted improperly, unreasonably or
negligently. The claimant had been
fundamentally dishonest in pursuing
a genuine claim worth £600,000.
Ritchie J relied upon DEMPSEY V
JOHNSON (2003) EWCA Civ 1134
where Latham LJ stated that the test
was not satisfi ed simply because one
acts for a party whose case is “plainly
doomed to fail.“ He went on to say
“It is rarely if ever safe for a court to
assume a hopeless case has been
litigated on the advice of the lawyers
who are involved.“ Let us not forget
that in Williams - Henry the claimant
had suff ered a very serious brain injury
hence the substantial amount of
damages she would have recovered
but for her outrageous deceit.
Fighting a war of
attrition over every
inch of ground is
unreasonable and not the way
civil litigation should be conducted.
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