Court can order solicitor to attend wasted costs cross-examination

Saini: Right to require solicitor’s attendance

The court has the power to require a solicitor to attend court for cross-examination in respect of a wasted costs application, a High Court judge has ruled.

Mr Justice Saini said there was no rule or principle which prevented it and the wasted costs regime in CPR 46.8 was not a complete procedural code.

This meant it did not exclude the court’s general powers or the power under CPR 32.7 to require anyone who gives evidence in writing (other than at trial) to attend for cross-examination.

“This is often overlooked and is an important provision for those who choose to give interlocutory witness statements to bear in mind,” Saini J noted.

Hunt v Annolight Ltd & Ors [2020] EWHC 3744 (QB) – handed down in December but only just published – was an appeal against a decision of His Honour Judge Godsmark QC in Nottingham to order Abid Sarwar, supervising partner and director of Blackburn firm Walker Prestons, to attend the hearing of a number of wasted costs applications in order to be cross-examined by the defendants.

The firm represented John Hunt in a noise-induced hearing loss claim that was discontinued after he had falsely stated in his part 18 response that he had not been a director of one of the defendants at the material time – Mr Hunt said he did not sign the response, but the firm said he did.

In relation to another of the defendants, Mr Hunt put forward a “confused and contradictory” position over whether he had been provided with ear protection.

The defendants sought to disapply qualified one-way costs shifting and/or for the wasted costs of the proceedings to be paid by Walker Prestons.

In a further hearing, Mr Hunt “effectively” threw the firm “under the bus”, blaming it for what had happened, Saini J recorded.

The firm argued that there was no power to require the attendance of a legal representative, pointing to CPR 46.8(2), which provides: “The court will give the legal representative a reasonable opportunity to make written submissions or, if the legal representative prefers, to attend a hearing before it makes such an order.”

It said this was a complete code regulating the procedure for dealing with wasted costs applications.

However, Saini J agreed with an unreported 2011 decision of Mr Justice Underhill (as he then was), sitting in the Employment Appeal Tribunal, in which he found no rule or principle which deprived the court of the ability to require a legal representative to attend for cross-examination.

Underhill J underlined that in most cases cross-examination of such a representative would be inappropriate or disproportionate but held that as a matter of jurisdiction a court could permit it.

Saini J said this reasoning was “convincing and correct”, while CPR 32.7 would also have provided the judge with jurisdiction.

“I reject the submission that the wasted costs regime in CPR 46.8 is a complete procedural code which would exclude the court’s CPR 32.7 power, or the general power identified by Underhill J.

“When a complete code is intended the rule drafters, they had made that clear: see CPR 36.1, for example.”

The judge went on that it was a proper exercise of discretion to require Mr Sarwar’s attendance.

“It is clear to me on even a brief perusal of the witness statements that there are radically different accounts given by Mr Sarwar (the firm) and Mr Hunt as to the facts which are central to certain of the issues to be determined by the judge on the hearing of the defendants’ applications.

“It may well be that it is rare to require the attendance of a representative to be cross-examined on an application of this type but in my judgment it is difficult to see how these issues could be resolved in a fair and proportionate way without oral evidence from Mr Sarwar.”

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