Legal Profession
Wasted costs orders (under s 51(6) of the Supreme Court Act 1981) are remedies of last resort. The legal representative should not be called on to reply unless an apparently strong prima facie case has been made against him. Where the responding lawyer is required to show cause why an order should not be made, the burden of proof does not shift away from the applicant, who must establish his case. Even where the court is satisfied as to conduct and causation, it has to consider whether to exercise the discretion to make the order and to what extent. Orders should only be made under s 51(6) where, and to the extent that, the conduct so characterised has been established as directly causative of wasted costs. Applications for wasted costs are usually best left until after the end of the trial.
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