Cost benefit analysis

• Wasted costs orders in civil litigation—a rapidly developing area of law.

Wasted costs orders can only be made against a representative, whereas non-party costs orders can be made against anyone, including a representative.

In both cases the power derives from s 51 of the Senior Courts Act 1981. Sub-section (3) provides that “the court shall have full power to determine by whom and to what extent the costs are to be paid” and this covers the county court, High Court and the civil division of the Court of Appeal (s 51(1)).

This piece deals with wasted costs orders in civil litigation (but there are similar sanctions in the criminal courts and in tribunals) and non-party costs orders.

Wasted costs

Wasted costs includes disallowing costs and ordering payment of costs (s 51(6)) and can be at the suit of the representative’s own client or the other side