Summary

If a party was charged with drawing up a court order it was the duty of its solicitors and counsel to produce a draft that fairly reflected what they thought that the judge had decided or directed. A defendant was entitled to its costs unnecessarily incurred as a result of unreasonable conduct by the claimant's solicitors in refusing to agree to the terms of an order in the form that had been directed at a case management conference.

Facts

The applicant (J) applied for an order that the respondent (W) pay its costs unnecessarily incurred in attempting to agree a draft court order.

W was the assignee of a mortgage lender. J was a firm of surveyors. W had sued J for allegedly negligent property valuations. At a case management conference the judge had proposed that issues about the validity of the assignment and negligence should be dealt with first, and that valuation issues should be heard separately. After considering the proposal and taking instructions both sides agreed to that course. The judge gave a judgment and asked W's counsel to prepare a draft order for agreement. The draft order sent to J did not reflect the judge's directions and there was correspondence attempting to reach agreement. J's solicitors sent their proposed draft order to the judge, who indicated that the order should be in that form. Despite that indication W's solicitors refused to agree its terms until very shortly before a further case management conference.

Held

If a party was charged with drawing up an order it was the duty of its solicitors and counsel to produce a draft that fairly reflected what they thought that the judge had decided or directed. What W's solicitors had done was to produce an order that reflected the directions that they or their clients would have liked to have had, and not the directions that the court had ordered. That was wholly unacceptable: it was not just unreasonable, it was verging on the contumelious. Solicitors and counsel had to give effect to court orders; they were not to attempt to manipulate them to their own or their client's perceived advantage. There was no reason at all why J should have to pay the costs that were quite unnecessarily incurred as a result of W's manoeuvres. However, it would not be right for J to recover all of the costs incurred in dealing with the draft order, as some would have been incurred in any event (see paras 19, 21 of judgment).

Application granted