Civil Procedure Rule 46.8(2) states that legal representatives have a choice as to whether to provide written evidence or attend a hearing in relation to a wasted costs order. The court has recently held that despite this, it retains jurisdiction under a different CPR provision to require a legal representative to attend for cross-examination at a hearing in relation to a wasted costs order.
In Hunt v Annolight Ltd and others EWHC 3744 (QB), the claimant pursued a noise-induced hearing loss claim against six of his former employers, but discontinued it following a dispute as to the level of hearing protection provided by one of the employers, as well as inaccurate responses to requests for further information.
The defendants made applications for qualified one-way costs shifting to be disapplied on the grounds of fundamental dishonesty and for the wasted costs of the proceedings to be paid by the claimant’s legal representatives pursuant to CPR 46.8.
His Honour Judge Godsmark QC directed that a senior lawyer from the claimant’s legal representatives should attend the hearing of the applications to be cross-examined. The legal representatives appealed.
The legal representatives argued that the court did not have jurisdiction to make an order requiring the claimant’s solicitor to attend for cross-examination. They relied on Ridehalgh v Horsefield  Ch 205, arguing that CPR 46.8 was a self-contained code.
High Court decision
The court referred to Godfrey Morgan Solicitors Ltd v Cobalt Systems Ltd (2011) UKEAT/0608/10, which analysed other cases including Ridehalgh. In Godfrey Morgan, it was held that there was no rule or principle which deprived the court of the ability to require a legal representative to attend for cross-examination. The court did, however, acknowledge that in most cases this would be inappropriate or disproportionate.
The claimant’s argument that CPR 46.8 is a self-contained code was rejected on the basis that if it were, the rules would make this clear. The High Court held that CPR 46.8 did not exclude the court’s power under CPR 32.7 to require anyone who gives evidence in writing to attend for cross-examination. Accordingly, the appeal was dismissed.
This case is unusual in that the factual information within the claimant’s witness statement was inconsistent with that of his legal representative’s witness statement. In wasted costs applications it is rare for the court to require the attendance of a legal representative for cross-examination, but in this instance, it was required to resolve the inconsistencies identified.
Anyone providing a witness statement in court proceedings should bear in mind the court’s ability to require their attendance for cross-examination, which applies even when providing a witness statement in support of an interlocutory application.
The authors would like to acknowledge the assistance of Rebecca Shipton, solicitor-apprentice at CMS Sheffield, in preparing this article.