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Legal Update by Tom Vonberg who represented the Defendant in the several NIHL cases securing wasted costs orders against Walker Prestons Solicitors (Blackburn)

In quick succession, Tom Vonberg has recovered wasted costs against the same firm of solicitors but in different cases on grounds of “impropriety” and “negligence”. In one of those matters the District Judge referred the law firm’s conduct to the Designated Civil Judge with a view to reporting it to the Solicitors Regulation Authority.

Whilst these were first instance decisions, the applications were an opportunity for the Defendants to argue the scope of “improper, unreasonable or negligent” conduct by legal representatives within the meaning of Section 51(7) of the Senior Courts Act. 

In the wake of Qualified One Way Costs Shifting, the wasted costs jurisdiction provided for by the Act has, in certain personal injury cases, become a useful route to costs recovery by Defendants.

Walker Prestons Solicitors in Blackburn, Lancashire appear to have a significant caseload of claims for low level noise induced hearing loss. It was a feature of the firm’s litigation strategy that it would routinely issue and serve claims against Defendant companies who had long since been dissolved. Contrary to normal practice, the firm then failed to take steps prior to issue or indeed afterwards to restore those Defendants to the register of companies so as to retrospectively validate service, pursuant to Peaktone Ltd v Joddrell [2012] EWCA Civ 1035.

Accordingly, Tom on behalf of the insurers for the dissolved Defendants argued at the inevitable strike out applications that the proceedings were a nullity and remained so until such time as the Defendants were restored. Prior to which it was contended, and accepted by the Judges in these applications, that the claims were susceptible to being struck out.

It was an unfortunate feature of Walker Preston’s conduct that many and various representations were made to the District Judges in order to secure adjournments of the hearings to strike out and in one of the cases the proceedings were discontinued the day before an adjourned hearing.

In one instance, the District Judge telephoned Walker Prestons in open Court to be told by the fee earner that their barrister had suffered a sudden bereavement and was unable to attend the hearing. This transpired to be untrue.  

In respect of this representation by the firm, District Judge Besford in the Hull County Court found that Walker Preston’s conduct had been improper as a result of their attempt to mislead the Court. So concerned was he with issues of conduct that, following his judgment, Judge Besford referred the case to the Designated Civil Judge with a view to notifying the Solicitors Regulation Authority.

In the Swindon County Court, District Judge Whiteley found that Walker Preston’s conduct, following similar attempts to frustrate the Defendants’ strike out applications, was negligent within the meaning of the Act. In this case the Defendants elected not to seek to set-aside a late notice of discontinuance. Instead, Tom successfully argued that the costs of the entire action to date should be borne by the firm, on the basis that the claim was invalid at commencement and continued on that footing, which the Judge summarily assessed at £17,500.

Optimistically, in opposition to the wasted costs applications Walker Prestons Solicitors appeared to advance a case via Counsel that because of QOCS the Defendants could never truly be said to have incurred wasted costs since they, ordinarily, had no expectation of costs recovery. As such, they submitted that the applications should be dismissed. Evidently, this argument did not find favour.

Tom was instructed in these claims throughout by Binita Patel and Neil Kochane, both partners and Yewande Fadeyi, solicitor, all at Plexus Law’s City of London office.

Tom Vonberg

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