Barrister duo appeal after wasted costs are ordered

'Improper' allegations about Big Break creator leave barristers facing payout; case to go to the Lords

A leading silk and a junior counsel face a wasted costs order for making “improper” allegations of fraud against one of the creators of TV snooker gameshow Big Break.
Bernard Weatherill QC, of Enterprise Chambers, and Josephine Hayes, of Gough Square Chambers, are appealing the Court of Appeal's decision to impose the wasted costs order against them to the House of Lords.
The Court of Appeal found that Weatherill and Hayes “should have reasonably credible evidence of fraud to establish a prima facie case of fraud before drafting such an allegation”. The court found that they had no such evidence and their allegations were improper.
Medcalf successfully sued the barristers' clients, fellow writers Terry Mardell and Michael Kemp, relating to the copyright for Big Break. The barristers claimed that Big Break writer Roger Medcalf, or someone on his behalf, had tampered with transcripts of evidence given at the trial and that a signature on his witness statement had been forged.
They also claimed that a trial witness claiming to be Medcalf's sister had been an imposter.
The barristers will allege that the Court of Appeal is the wrong jurisdiction to impose wasted cost orders, despite the fact that the court has already made hundreds of such orders.
They claim that the Courts and Legal Services Act 1990 only applies to wasted costs orders imposed against counsels' own legal advisers. In this case, Medcalf on the opposing side is making the claim.
The counsels' insurance partner Angela Horne of Clyde & Co, who is acting for the Bar Mutual Indemnity Fund, told The Lawyer that the relevant legislation makes it clear that any wasted costs order involves an automatic waiving of a barrister or lawyers' privilege of client confidentiality.
However, in this case the barristers clients, Medcalf's fellow writers Terry Mardell and Michael Kemp, did not waive the privilege as it was unnecessary to do so because the other side made the wasted costs order application. Because of this the 1990 act could not apply.
The barristers will also allege that they were denied the right to a fair trial because, as privilege was not waived, they were prevented from telling the court what they were shown or told by the client.
Gordon Dodds litigation partner Patrick Gearon is acting for Medcalf.