Introduction
1.This is an application by the Claimant (“Mr Costa”) for a wasted costs order.2.3.4.On 18 October 2022 there was a hearing to determine the form of order. Disputes followed as to the precise form of relief, but the order was finalised on 10 November 2022.5.On 14 July 2022, shortly after the draft of the judgment was handed down, the defendants informed Mr Costa that the relief they would seek included a mandatory injunction requiring Mr Costa to withdraw his takedown requests in a manner specified. At the hearing on 18 October 2022 I took the view that the injunction sought would have the merit of affording an appropriate means of ending the effect of Mr Costa’s takedown requests and would not be unduly onerous on Mr Costa. Such relief had not formed part of the defendants’ pleaded case but CPR 16.2(5) allows the court to grant any remedy to which the relevant party is entitled even if the remedy is not specified in the claim form.6.At that hearing one of the submissions made by the first respondent to this application, counsel for Mr Costa (“counsel”), was that the court had no jurisdiction to grant the injunction; alternatively, the court should not exercise its discretion to do so. Despite having been aware of the defendants’ intention to seek the injunction since late July, counsel had neither fully prepared his argument in support of his case on jurisdiction nor had he filed supporting authority. The defendants’ legal team were notified of his proposed argument just before the hearing, again without any supporting authority. This was not satisfactory, but because the primary submission concerned the jurisdiction of the court, I directed that the parties should file written submissions on the point.7.The written submissions subsequently filed by counsel no longer pursued the argument that the court had no jurisdiction. Instead counsel pressed his alternative argument that the injunction sought by Ms Wilkinson should be refused in the court’s discretion.8.I dealt with the matter on the papers. On 25 November 2022 I granted an injunction requiring Mr Costa to take all reasonable steps to withdraw his takedown requests and relevant complaints and dealt with other points that remained outstanding. These included costs. I ordered that there would be no order as to costs in the action down to and including the hearing on 18 October 2022. I also made this further order:“The Claimant shall pay the Defendants’ costs incurred after the hearing on 18 October 2022 to the date of this Order, such costs to be paid pursuant to CPR 63.26(2). The Defendants have permission to apply to the Court.”9.CPR 63.26(2) provides that where a party has behaved unreasonably the court may make an order for costs at the conclusion of the hearing; pursuant to CPR 45.32 (which remains applicable to the present proceedings) such costs are in addition to the cap on total costs which generally applies in this court.10.I stated my reasons within the order of 25 November 2022:“(1)The Claimant’s objection to the relief sought by the Defendants and now granted under paragraph 1 of this Order was not raised until the evening before the hearing on 18 October 2022 dealing with the matters consequential upon the judgment of 22 July 2022. It was asserted at that hearing that the Court did not have jurisdiction to grant such relief but no authority was proffered in support of the objection. Because the objection went to the jurisdiction of the Court, the parties were given the opportunity to provide written submissions on the point and did so. The Claimant has now withdrawn the submission that the Court has no jurisdiction and asserts instead that the Court should not exercise its discretion to grant such relief. For the reasons given by the Defendants in their submissions I am satisfied that such relief constitutes an appropriate exercise of the Court’s discretion.…(5)No significant costs would have been incurred by the Defendants after the hearing on 18 October 2022 had the Claimant not raised its late objection to the Court’s jurisdiction. Save to an insignificant degree, those costs were caused by and related to the Claimant’s argument regarding the Court’s lack of jurisdiction. The Defendants are entitled to their costs since that date in accordance with CPR 63.26(2).”11.The defendants filed a Statement of Costs for the period 18 October to 25 November 2022. By an order dated 8 December 2022 Mr Costa was required to pay costs for that period in the sum of £10,000 within 14 days of the date of the order.12.On 15 December 2022 Mr Costa filed an application notice seeking a stay of the order for payment, a wasted costs order against his counsel and seeking further an order that counsel should pay to the sum of £10,000 due to the defendants. By a subsequent application notice dated 20 December 2022, Mr Costa sought to amend his application so that the liability for payment be split equally between his (by then) former counsel and former solicitors, the latter being second respondent to the present application.13.Evidence has been filed by Mr Costa and counsel.The procedure14.CPR 46.8 sets out the procedure to be followed when the court is considering whether to make an order under s.51(6). This is amplified in PD 46, which includes this:5.7 As a general rule the court will consider whether to make a wasted costs order in two stages –(a) at the first stage the court must be satisfied –(i) that it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and(ii) the wasted costs proceedings are justified notwithstanding the likely costs involved;(b) at the second stage, the court will consider, after giving the legal representative an opportunity to make representations in writing or at a hearing, whether it is appropriate to make a wasted costs order in accordance with paragraph 5.5 above.5.8 The court may proceed to the second stage described in paragraph 5.7 without first adjourning the hearing if it is satisfied that the legal representative has already had a reasonable opportunity to make representations.15.Mr Costa filed his application on 15 December 2022 together with a witness statement of the same date plus exhibits. Counsel filed a witness statement with exhibits on 18 December 2022. There followed further correspondence from Mr Costa, now unrepresented, and his application dated 20 December 2022 amending his claim for wasted costs to be directed to his former solicitors as well as counsel. The further correspondence can be summarised in relevant part as follows, each exchange chronologically following the previous one; all were sent on 20 December 2022 save for the last which reached the court on 22 December 2022:(i)I noted that in Mr Costa’s first application he requested a hearing of one hour. I asked the parties whether either side wanted a hearing.(ii)Mr Costa stated that he was content for his application to be decided on the papers unless the court was minded to dismiss the application, in which case he would like to make further oral or written submissions.(iii)I stated that I had not reached a view on Mr Costa’s application but that if Mr Costa wanted a hearing he would have to make up his mind now.(iv)Mr Costa enquired whether counsel had requested a hearing.(v)I said that I would await the view of counsel and Mr Costa’s former solicitors regarding a hearing.(vi)Mr Costa stated that he did not oppose determination on the papers but believed that the parties’ interests were better served by an oral hearing.(vii)Counsel’s solicitors stated that counsel was content to have the matter resolved on the papers. Nothing was said about Mr Costa’s application against the solicitors themselves.16.These exchanges, particularly those from Mr Costa, were considerably longer than the very brief summary given here. As can be seen, the sequence of events did not neatly conform to the two-stage process of paragraph 5.7 of PD 46 but I am satisfied that all concerned had a reasonable opportunity to make representations and that it is appropriate to decide this matter on the papers.The law17.Section 51(1) of the Senior Courts Act 1981 states the basic rule on costs in any proceedings in the High Court, namely that they are in the discretion of the court subject to the provisions of any enactment or rule of the court. Subsections 51(6) and (7) provide:(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 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 unreasonable to expect that party to pay.18.In Fletamentos Maritimos SA v Effjohn International BV [2003] Lloyd's Rep. P.N. 26, Simon Brown LJ referred to s.51(1), (6) and (7) of the Senior Courts Act 1981 and continued:“The principles upon which these provisions are to be applied have been established by a trilogy of recent cases in this court: