Medcalf v Mardell
A wasted costs order should not be made against barristers where legal professional privilege prevents them from explaining their conduct.
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.
Related cases on judiciary, legal profession and access to justice
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- Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416
- Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398
- Lawal v Northern Spirit Ltd [2003] UKHL 35, [2004] 1 All ER 187
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