Barrister wins appeal over wasted costs order

John Malpas reports

THE BARRISTER who won his appeal against his wasted costs order says he is glad the judges understood the problems faced by barristers acting for legally aided clients.

Kieran May, of Robin Stewart QC's 199 Strand chambers, won his appeal against the order earlier this month.

It was made during a personal injury trial last year which had to be adjourned

following May's use of a letter in his opening which was subsequently ruled inadmissible.

The judge who made the order said a preliminary hearing should have been arranged for the court to decide on the admissibility of the insurer's letter which had offered a

negotiated compromise settlement but was not headed "without prejudice".

At the appeal two of the judges, Lord Justice Evans and Lord Justice Aldous, came out in favour of May.

But the third, Master of the Rolls Sir Thomas Bingham, said he would have declared the order sound before bowing to the bench's majority opinion.

"A legal representative should not be considered to be negligent because he acted for a party who pursued a claim that was bound to fail unless to do so amounted to an abuse of process of the court," said Lord Justice Aldous.

May says: "Two of them seemed to understand the sort of trench warfare that goes on between insurance companies and counsel working for legally aided clients."

He praises his defence team, Rupert Jackson QC and Roger Stewart, of 2 Crown Office Row, and instructing solicitors London-based Reynolds Porter Chamberlain.

Stewart is unsurprised by the outcome of the appeal, which he says was in line with a 1994 judgment.

But May believes the profession will be reassured by the ruling that a barrister pursuing a fairly arguable point in the interests of his client is protected from negligence claims. He says there has been a tendency for insurers to pursue wasted costs orders against barristers acting for legally aided clients in a bid to recoup costs.

Anthony Berrisford, representing insurers Iron Trade Insurance Group, applied for the wasted costs order. The barrister, of The Ropewalk, Nottingham, declined to comment on the appeal as did instructing solicitors Nelson & Co, of Leeds.

Ever since the Courts and Legal Services Act 1990 increased the powers of wasted costs orders there has been concern among solicitors and barristers about their use by defendants as a way of obtaining costs when a party is legally aided and so not liable for costs.