Wasted Costs Order

Caroline Robinson (Administratrix of the Estate of the Late Stanley Charles Faulkner Deceased) v Lansing Bagnall Ltd, Linde Material Handling UK Ltd

In the above claim, Master Thornett was satisfied that a wasted costs order should be made against the claimant’s Solicitor, Tilly Baker & Irvine, in circumstances where they had not only sued the wrong defendants but, without explanation or justification, maintained the claim against those defendants for the best part of two years.

Weightmans LLP were instructed to act on behalf of the second defendant. 

Background

In her capacity of Adminstratrix, the claimant served proceedings against three defendants, Air Compressors & Tools Ltd (D1), Lansing Bagnall Ltd (D2) and Lansing Linde Ltd (D3) in July 2021 in respect of her late father’s development of asbestos related mesothelioma of the pleura.    

In their defences both the second and third defendant raised concerns not only with the corporate identity of the defendants, but the evidence presented.   

As the claimant’s solicitor failed to address these concerns, the second and third defendant made an application to strike out the claimant’s claim and/or for summary judgment in February 2023, firstly on the basis that they could not have employed the deceased as alleged or at all and secondly, on the basis that the case on exposure had no reasonable prospect of success. 

In July 2023 and a week before the application hearing, the claimant’s solicitor made an application to add and/or substitute a party to the action, without conceding that the defendants had been incorrectly named. This resulted in the first limb of the second and third defendant’s application being adjourned. The second limb of the application was unsuccessful. 

The adjourned application came before the court on 22 May 2024 and with the consent of the claimant, the claims against the second and third defendant were dismissed.   

At the hearing, the second and third defendant made an application for a wasted costs order against the claimant’s solicitor on account of their unreasonable conduct in doing nothing to address the fact they had sued the wrong defendants for the best part of two years.  

The wasted costs application came before Master Thornett on 19 December 2024, and the reserved judgment was handed down on 13 June 2025.  

In granting the wasted costs order, Master Thornett was satisfied that the claimant’s solicitor was negligent in the continuance of the claims against both the second and third defendant. He went on to say that irrespective of their comments on legal privilege or what advice they may have given or what instructions they had received, no reasonable solicitor would have simply done nothing from late 2021, when replies to defences were filed, through to May 2024 aside from issuing a procedurally ambiguous application in July 2023, only then to agree to discontinue the claims against these defendants on the day of the strike out application.    

Master Thornett went on to say that this was unjustifiable and amounted to an abuse of process. Furthermore, even if the claimant had instructed the claimant’s solicitor to continue with such claims, then they should have applied to come off the court record.

As a result, both the second and third defendant were awarded their costs from the date replies to defences were filed through to and including the hearing on 22 May 2024, as well as their costs of the wasted costs application itself.     

The claimant’s solicitor has sought permission to appeal the decision. 

Comment

Whilst the threshold for a wasted costs order remains high, the above case demonstrates that such orders are a useful tool in circumstances where the other side’s conduct is so unreasonable that it is unjustified and has resulted in increased costs/delays. 

Had the claimant’s solicitor taken steps to remedy the identity of the defendant in a timely manner, when the error was first highlighted, then a wasted costs order is unlikely to have been granted.