Francesca O’Neill successful in appeal against a decision of the lower court that the usual rule under CPR r.46.1 should be followed even in circumstances where the opposition to the application was arguably unreasonable, and where the manner of opposing it had not been considered. The prospective Claimants in a professional negligence claim against their former solicitor were denied access to their solicitor’s file of papers, with the solicitor claiming a lien over them. Despite offering to preserve the lien by way of an undertaking, the solicitor refused access.
An application for pre-action disclosure was successful, but the prospective Claimants were ordered to pay the costs of the application in the usual way. The prospective claimants appealed. The lower court had erred in not finding that the prospective Defendants had acted unreasonably and should have made a different costs order: either that the prospective Claimants should have their costs paid or that there should be no order as to costs. Examples of unreasonable conduct and a continuing failure to follow the pre-action protocol for professional negligence had been argued below, but not taken into consideration.
HHJ Beard agreed that the lower court had failed to give reasons for the decision which showed that those considerations had been properly factored into the exercise of the discretion. He remitted the matter back to the lower court for a reasoned decision on the costs point and awarded the appellants their costs of the appeal, which was strenuously resisted.
Francesca was instructed by Gelbergs.