Medcalf v Mardell

A wasted costs order should not be made against barristers where legal professional privilege prevents them from explaining their conduct.

Citation
[2002] UKHL 27, [2003] 1 AC 120
Court
House of Lords
Year
2002
Subject
English Legal System
Topic
Judiciary, legal profession and access to justice

Facts

In a long running commercial dispute, barristers acting for one side made serious allegations of fraud against the other side in a draft amended notice of appeal. Under the code of conduct for barristers, a barrister must not allege fraud unless he has reasonably credible material establishing a prima facie case. The Court of Appeal made a wasted costs order against the barristers, holding that they did not have such material. The barristers could not explain what material they had, because their client would not waive legal professional privilege.

Legal principle

The House of Lords set aside the wasted costs order. Lord Bingham said that where a lawyer cannot defend himself against an application for a wasted costs order because of legal professional privilege, the court should make full allowance for the fact that he is prevented from telling the whole story, and should only make an order if it is satisfied that there is nothing that the lawyer could say, if unconstrained, to resist the order, and that it is in all the circumstances fair to make it. Here, the barristers might well have had material that justified the allegations, so it was not fair to make the order.

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