WASTED COSTS ORDER MADE AGAINST FIRM OF SOLICITORS FOR FAILING TO INSTRUCT COUNSEL TO ATTEND A HEARING

In A Father v A Mother [2025] EWHC 364 (Fam) Ms H Markham KC, sitting as Deputy High Court judge, made a wasted costs order against a firm of solicitors. The solicitors had failed to take steps to ensure that counsel was available to attend a three day hearing.  The conduct of the matter was such that the criteria for a wasted costs order was met.  The idea that it was the responsibility of counsel (who had informed the solicitors they could not attend the hearing) to “instruct other counsel” was roundly rejected.

An empty court room is never a welcome event to the judge

“It is important that solicitors remember their role in the proper instruction of Counsel and that they must ensure that Counsel is properly and fairly instructed and in a timely manner so that they (Counsel) can in turn comply with their regulatory and ethical duties to client and court. I make the clear observation that all solicitors instructing counsel must ensure that they do so in this fair way, and in a timely fashion. It is the responsibility of solicitors to comply with their Regulatory duties so that Counsel can comply with theirs and the clients be properly represented and court time is not wasted.”

THE CASE

In a case where the father sought summary return of children directions were made at which the mother was represented by counsel.  That counsel made it clear, at the end of the hearing, that she could not attend a hearing listed to take place on the 19th December 2024..

1. 1. Counsel who appeared before me at that hearing for the mother made it plain that she was no longer available for the hearing in December and noted that she would inform her instructing solicitor and steps would be taken to secure alternative counsel. I received an email from her on the afternoon of 4 December stating that:

I have just made enquiries in chambers who had a back up counsel who has now become unavailable as such my IS will need to look outside of chambers.

NON-ATTENDANCE AT THE ADJOURNED HEARING

Three days before the hearing was due to take place the mother’s solicitors wrote to the court asking for an adjournment.

1. 1. At 9.36am on the morning of 16 December I was advised by the court staff that the following email had been received from the mother’s solicitor:

Dear Sirs,

Request for an adjournment

I have learned from our barristers that they have received a phone call from the XX firm (anonymized for this judgment) that our client, Ms. J, no longer needs their services, as well as our services.   After speaking to Ms. j this morning, she confirmed that she contacted other solicitors about two weeks  ago, but she later decided not to proceed with giving them instructions.

Our barristers then rang the XX firm this morning, and found out that they are not representing the client as the client decided not to proceed.

Our barristers are not able to re-allocate Counsel for the day. In this regard, I would like to apologise to the Court, and request that today’s hearing be adjourned.

1. 1. I responded with questions of the author who replied by 1104 am and I set out his responses below:

Dear Judge,

Further to the Court’s email response today, please find below my response:

Q1. When did those emailing me today know that their services were no longer required?

Friday, 6th December

The XX firm, represented by AR, contacted chmabers to confirm that the client, Ms. J, wished to dismiss Burnham Law Practice due to a legal aid issue and instruct the XX Firm instead. Chambers informed them of difficulties in securing counsel availability, Chambers confirmed that this was issue already communicated to both the Court and the XX firm. In response, AR indicated that they would handle the matter themselves.

Friday, 13th December

Counsel stated that they received correspondence from the court, which needed to be forwarded to the new solicitors. The solicitor emailed Burnham Law Practice to inquire about their contact with the new solicitors, but did not receive correspondence from Burnham Law until this morning.

Monday, 16th December

Chambers immediately contacted the XX firm for clarification. AR explained that while the client had expressed a desire to dismiss Burnham Law Practice, she was still deliberating and had not finalized the decision. This information was promptly relayed to Burnham Law Practice.

Q2: Why did no one check on Friday?

I received a forwarded email from chambers asking for the new solicitor’s contact. My understanding was chambers was referring to the solicitors for the applicant. I was aware that there was some difficulty in looking for counsel in today’s hearing, however, I was made to understand that chambers will make the necessary arrangements, which they normally are able to do.   I was not aware of the circumstances  (The XX firm) until this morning.

Q3.: Do they consider themselves instructed at all today?

Chambers has confirmed that they have now secured counsel for tomorrow.

I again apologise to the Court in the circumstances.

1. 1. At 1116am a further email was sent saying that he had misunderstood and Chambers were attempting to find a barrister for the next two days but had not yet secured one.

1. 1. At 1156 I reminded mother’s instructing solicitor that he had not responded to direct questions about whether and when they considered themselves on the record and noted that the only Notice of Acting the court held had them as solicitors on the record and I ordered them to court.

1. 1. Solicitor with conduct of the case arrived at court at about 3pm.

1. 1. I was informed that efforts were being made for alternative counsel and that Messrs Burnham Law accepted that they had been throughout and remained ‘on the record’ and as it later transpired knew nothing until Monday 16 December of any possible transfer of their legal aid certificate nor any of the ‘issues’ around securing counsel until that morning.

1. 1. The solicitor with conduct of the case was due to leave the jurisdiction with his family that night, and the next day another associate from the firm (who did not have rights of audience) was sent to manage the evolving issues. I have no criticism of him and the steps he took to assist this court and granted him rights of audience.

1. 1. Understandably when it became clear that despite all efforts the 3-day hearing could not proceed (no counsel across England and Wales being able to attend court, so I was told), the father invited me to consider an application that their costs wasted by the actions of the mother and or her legal team should be met by them (either by the solicitors or mother in shares to be determined).

1. 1. I directed information to be gathered from Chmabers who in fact sent an email of their own accord, from AR of the XX Firm and from the solicitor with conduct of this case. He duly submitted that along with a skeleton argument. I directed that a short hearing be listed in the New Year ahead of the 27 January hearing to address further arguments as to wasted costs and to ensure that the case was on track.

1. 1. I made it plain to the mother, who was in court throughout, that she must be clear if she wished to transfer her legal aid certificate to a new firm to do so promptly as I would need significant persuasion to further adjourn these proceedings in January. In seeking to clarify whether she had at any stage told Messrs Burnham Law that she did not need their representation or whether she had tried to contact them in advance of the hearing she advised me that she had emailed her instructing solicitor in the previous week, not least on 11 December and on more than one occasion and had had no response. They knew nothing from her of a possible transfer of legal aid certificate. She was clear that when told by the XX Firm that time was too short to transfer the legal aid certificate, she then emailed Burnham Law to progress her case.

1. 1. I listed the hearing in person on 7 January primarily to afford Messrs Bunrham Law time to reflect on their role in the wasted costs of the father and to allow them time to make offers to settle (if they formed the view this should happen). It further appeared right to me that errors of law in the skeleton argument drafted by them could be considered orally and any arguments on the correct legal principles could be made to me in court. Ahead of that hearing I was provided with a very helpful skeleton argument on behalf of the father in which the leading case law was set out alongside the Family and Civil Procedure Rules.

1. 1. I had also received a statement from AR of the XX Firm in which she explained what she has said to the clerks at Chambers and whilst I note it was perhaps premature of that firm to have made any calls when they were not on the record, I am clear that nothing was said or done by them which could impacted on the conduct of Messrs Bunrham Law and the duties imposed on them holding a legal aid certificate, in particular of course as they knew nothing about the involvement of the other firm

1. I was also sent an email from a clerk at chambers. They plainly were not at any stage sent instructions for counsel nor did they have any contact whatsoever from solicitors to confirm counsel was needed. They did email Messrs Burnham law (as set out above) but even then had nothing to say counsel was needed.

THE PRINCIPLES RELATING TO SOLICITORS CONDUCT AND WASTED COSTS

The judge carried out a detailed consideration of the principles relating to conduct and wasted costs.  She concluded

1. 1. It seems to me therefore that in examining the factual issues in this case I must be satisfied, and am clear that it is essential that I find that there is a direct causal link to the wasted costs and the conduct of those facing such an order. Any costs not directly caused by the actions complained of are not to be included into the order.

1. 1. I have provided the solicitor with conduct of the case an opportunity to be heard, both through written documents and orally in this hearing. I considered that this hearing was necessary for the reason set out in this judgment.

1. During the hearing I had to remind the advocate of his client’s right to legal professional privilege, but this did not prevent him in my judgment being able to advance a full case against the application for costs. I read and considered the statement prepared by Messrs Burnham Law the exhibits attached to it and the statement from AR along with the email from Chambers.

APPLYING THOSE PRINCIPLES TO THE FACTS OF THIS CASE

1. 1. The starting point in this case is that Messrs Burnham Law held a live legal aid certificate to represent the mother in these proceedings. On 6 December they were I find, and this is in the statement filed on behalf of Burnham Law, told by Counsel instructed by them, that the adjournment they applied for had been refused in so far as it related to ongoing progress of the allegations of domestic abuse and habitual residence and that the hearing remained listed on 16 December for 3 days. They were told that counsel could not attend that hearing and that new counsel would need to be found. I am told that this conversation took place by phone and I have been shown no attendance note of the same. This accords with the email sent to me by Ms H on 4 December 2025.

1. 1. I was told by Messrs Burnham Law that they were not sent a copy of the draft or final order, however equally they did not chase for it nor did they show me anything to suggest they took any steps to speak with counsel again or request the order from the Court.

1. 1. At no stage did Messrs Burnham Law know anything about the mother considering moving to a new firm and I find that at all times between 4 December and 16 December 2024 they believed themselves to be solicitors on record as indeed they were.

1. 1. I find that at no stage did any member of Burnham Law contact any chambers to enquire if Counsel was available to attend the hearing nor did they contact the named chambers to ensure that counsel was instructed; this in particular in a situation where on their own evidence to me they were made aware that counsel could not attend as expected and that new counsel would need to be instructed.

1. 1. Submissions made to me were that Counsel should have undertaken this task and she did not. I find that this is not the proper way to approach this issue and it was wrong of Burnham Law to have sat back and done nothing. Counsel did nothing wrong and had reported back to her instructing solicitors after the hearing.

1. 1. At no stage did Messrs Burnham Law respond to emails sent to them by the mother in the week ahead of the court listing. They did accept emails were sent and they did not respond. This was a failure of their duty to her to prepare her case ahead of a listed hearing.

1. 1. At no stage did Messrs Burnham Law consider any issue about prior authority to instruct the expert.

1. 1. At no stage did Messrs Burnham Law provide instructions to counsel and ensure that Counsel, who they knew would be new to the case, had instructions on how to prepare the case, what papers to prepare and to ensure that the newly instructed Counsel did not need to speak to the client, to them or indeed need anything to undertake steps to prepare the case.

1. 1. No steps were taken at any time to ensure that Counsel was instructed. No brief was sent.

1. 1. In summary I find that Burnham Law:

i. did not take any steps to prepare and send a brief to counsel for the hearing commencing 16.12.24;

ii. did not prepare and lodge a trial bundle for the hearing – order of 08.11.24 and rules of practice;

iii. did not take any steps to arrange for a witness bundle to be available;

iv. did not take any steps to ensure that the contact details of the witnesses giving evidence remotely were made available to the court – order of 08.11.24;

v. they did not comply with any directions of the court made on 04.12.24.

1. 1. Further I find that there was no indication whatsoever of the possible issues arising from the lack of counsel ahead of the email sent on Monday 16^th December seeking an adjournment. In my judgment this ought to have been recognised in the week before and the difficulties in securing counsel shared with both the father and the court.

1. 1. The submissions made to me that Counsel ought to have ‘instructed’ new counsel were in my view wholly misplaced and demonstrated a failure to understand the basic process undertaken between solicitor and Counsel and the manner in which Counsel are instructed by solicitors. The Bar Code of Conduct speaks throughout of instructions being provided and enshrined in that code of conduct is a duty on Counsel to read instructions to ensure that deadlines are met, the case is understood and to ensure that said instructions can be properly accepted in line with the issues, complexity of the case and the ability of Counsel to comply with them.

1. 1. It is important that solicitors remember their role in the proper instruction of Counsel and that they must ensure that Counsel is properly and fairly instructed and in a timely manner so that they (Counsel) can in turn comply with their regulatory and ethical duties to client and court. I make the clear observation that all solicitors instructing counsel must ensure that they do so in this fair way, and in a timely fashion. It is the responsibility of solicitors to comply with their Regulatory duties so that Counsel can comply with theirs and the clients be properly represented and court time is not wasted.

1. 1. The courts of England and Wales are under immense pressure. Cases such as this, for summary return of children are to be dealt with, where at all possible in a short time frame (6 weeks) and this, of course, holding the needs of the children at the centre of the court process.

1. 1. In this case there had already been significant delays in holding the necessary 3 day hearing. I do not, in relation to the historic failures, and in this judgment assess or apportion blame for anything which happened ahead of the hearing on 4 December and have focused on conduct between that date and the morning of 16 December 2024.

1. 1. Ms Amiraftabi submitted to me on behalf of the father that when considering the conduct of Messrs Burnham Law I can be satisfied that the conduct traversed all three headings set out in the caselaw, that it was improper, unreasonable and negligent. I need only find one of those engaged.

1. 1. I am satisfied that there was a direct causal link between the inaction and failure to ensure that this case was properly prepared and an advocate instructed to attend the hearing and the fact that the hearing could not then proceed. There is therefore a link between the acts or lack of acts by Mess Burnham Law and the loss to the father of the costs he had paid to his direct access counsel which were wasted because the hearing could not proceed.

1. 1. I am entirely satisfied that Messrs Burnham Law had proper time to advocate against the Cost order when Notice to show cause was orally made by the father. Further they had additional time over the Christmas period to review matters and to reflect on their actions.

1. 1. I find that Messrs Burnham Law were negligent, in that they did not act with the competence reasonably expected of ordinary members of the profession in the preparation of this case for the 3-day hearing and in their failure to both instruct counsel and enquire whether counsel was available to be instructed. I further find that it was unreasonable of Messrs Burnham law to expect counsel to ‘instruct’ new counsel to take the case when she was not able to.

1. 1. I find too that Messrs Burnham Law failed in their core SRA duties as set out above.

1. 1. I was invited by Messrs Burnham Law to find that they acted diligently, but they were unable to direct me to evidence where they took any steps whatsoever in the week before the hearing to prepare the case for trial, to speak to their client and or to ensure counsel was instructed. That they knew nothing of the possible transfer of legal aid certificate or enquires made by AR only underlines the fact that those issues had no impact on what they should have been doing to ensure that their duties to their client and to this court were met and to ensure that the court’s time was not wasted.

1. 1. I was advised that the father’s funds to continue to instruct counsel to attend the future hearings are diminished. I note that he is already at a financial disadvantage as the mother has a legal aid certificate and he does not.

1. 1. I further note that I sit on this case as a fee paid Deputy High Court Judge, brought in to ensure that the hearing date was not lost or adjourned to the parties. My fees, like those of all other fee paid Judge are paid by the Ministry of Justice. There is a responsibility on all in the Family Justice system to ensure that each hearing matters, that all available resources are used properly and that hearings are not wasted.

1. 1. Accordingly, I made an order that Messrs Burnham Law should met the entirety of the father’s counsel’s costs for the 3 days hearing; I note that Counsel is instructed through the Direct Access scheme and had fully prepared the case, including drafting detailed opening note, summary of law and producing an accessible bundle of videos for the court. I find her fees in the circumstances reasonable and fair.

1. 1. Notwithstanding the submission to me that I should exercise my discretion and determine that the costs incurred by the father in travelling to this jurisdiction (flights and accommodation) should not form part of the costs order as he was able to see his children, I find that the primary purpose of the father’s attendance was in light of my direction that I would wish him if possible to be at court in person to give evidence to me. I also make an order that those costs are paid. They are fair and reasonable costs in my judgment.

1. 1. Lastly, I order that Counsel’s costs in drafting the skeleton argument for this hearing and her attendance are also met by Messrs Burnham Law who made no offer to settle until mid-way into this hearing.

1. 1. Messrs Burnham Law did not oppose interest being paid between the time Counsel’s fees were paid and the date of settlement, nor did they oppose an order that interest will continue to accrue until the costs are met.

1. 1. The costs order I therefore make is that Burnham Law shall pay to the father the amount of £XX together with interest from the date of payment (11.12.24) within 10 days of the hearing on 07.01.24.

1. 1. I gave an extempore judgment on 7 January 2025 but informed the parties that in my view the issue in this case was such that the case I would publish this judgment and would take time to finalise a written judgment.

1. 1. I further advised that I consider any submissions in relation to appeal and or timing of the same and as to anonymisation of this judgment. Having considered those submissions this is the anonymised judgment. I formed the view that no party, counsel or chambers should be identified but that Messsr Burnham law should be.

1. If no application for Permission to appeal is made the costs shall be paid by 17 January 2025.