Mr Justice Turner dismisses the appeal by Slater & Gordon of Stage 1 wasted costs decision
3rd Oct 2025
Nadia Whittaker instructed by Gill Stoll of Hill Dickinson LLP successfully resisted an appeal by Slater & Gordon LLP against the decision to allow an application for wasted costs against them to proceed to Stage 2 in accordance with CPR 46.8 and the Practice Direction to Part 46.8.
Mr Justice Turner made some important observations about the exercise of discretion at Stage 1, the nature of conduct that warrants a wasted costs order and the role of privilege.
- Mr Justice Turner deprecated the need for a granular attention to the way in which judges have approached the exercise of discretion in some first instance earlier cases, although stressing that each case depends very much on its own facts.
- He held that “to commence proceedings and to plead particulars of claim alleging clinical negligence against a professional person such as a consultant spinal surgeon without the benefit of anybody of like discipline at the time falls very far short indeed of what the court can reasonably expect of a solicitor professing expertise in such claims”.
- In the context of this specific criticism of Slater & Gordon’s conduct, he described the attempt to rely on privilege based on the idea that the decision to proceed without expert support had anything to do with the Claimant as bordering “on the ludicrous”. He stressed that privilege is not there to protect the legal advisers.
- Mr Justice Turner’s decision on privilege echoes comments made by Master Thornett in another wasted costs decision in Robinson v Air Compressors & Tools Limited & Ors[2025] EWHC 1469 (KB) where reliance on privilege in a similar context was described by analogy as a resort to a mere “fig leaf”.
Context
On 26 September 2024, His Honour Judge Carter sitting at the County Court at Liverpool handed down judgment in Brown v Liverpool University Hospitals NHS Foundation Trust and Mersey and West Lancashire Teaching Hospitals NHS Trust, a clinical negligence case in which Nadia Whittaker was instructed by Gill Stoll of Hill Dickinson LLP for the successful Defendant NHS Trusts. The Court found against the Claimant on the issue of liability and went on to find the Claimant to be fundamentally dishonest such that the provisions of the Qualified One-Way Costs Shifting were disapplied pursuant to CPR rule 44.16(1).
On 23 October 2024, Mersey and West Lancashire Teaching Hospitals NHS Trust (the Second Defendant) made a wasted costs application (the WCO) against the Claimant’s solicitors, Slater & Gordon LLP. The basis of the application was that Slater & Gordon advanced the claim against a spinal surgeon employed by the Second Defendant without having any spinal surgery expert evidence in support of the allegations.
The first instance decision
Stage 1 of the WCO was heard by HHJ Carter by telephone on 29 November 2024. The Judge gave an ex tempore judgment allowing the WCO to proceed to Stage 2.
The appeal by Slater & Gordon
Slater & Gordon appealed primarily arguing that HHJ Carter erred in the exercise of his discretion because he failed to have regard to all of the factors that he should have considered at Stage 1 in accordance with the decision of Mr Justice Ritchie in Williams-Henry v Associated British Ports & Hugh James (a firm) [2024] EWHC 2415 (KB).
Permission to appeal was granted by Mr Justice Bright on 11 March 2025 on the basis that there was a real prospect of success in Slater & Gordon’s submissions as to what an applicant seeking a wasted costs order must establish and to what standard at Stage 1 of the WCO.
Judgment on appeal by Mr Justice Turner
- On the nature of conduct relied upon for the WCO
- … The position in law is clear. It has been articulated in the Court of Appeal in the case of Pantelli, but it has been a proposition that has been well known to all practitioners, not only in the area of clinical negligence but also all aspects of professional negligence, and that is that you do not deploy an expert in one discipline to criticise the actions of someone of a different discipline.
- There can be no doubt in my mind in this case that to commence proceedings and to plead particulars of claim alleging clinical negligence against a professional person such as a consultant spinal surgeon without the benefit of anybody of like discipline at the time falls very far short indeed of what the court can reasonably expect of a solicitor professing expertise in such claims.
- On the approach to Stage 1 of the WCO
- The usual way of dealing with an application for wasted costs is for it to be dealt with in two stages. That is the general rule provided for under the Practice Direction. It has to be stressed, however, that the two-stage process is only a general rule. It is not mandatory, and also, perhaps more crucially, both stages involve the exercise of a level of discretion on the part of the judge who is considering it. Therefore, it is potentially ill-advised in every case to look at the process with a granular attention to the way in which judges have approached it, particularly at first instance, in earlier cases. Each case depends very much on its own facts, and it is, in my view, counter-productive to apply considerations as if they were the wording of a statute as opposed to well-intentioned guidance in terms of what might generally be the case.
- The whole purpose of the first stage is to provide a summary and proportionate mechanism by which to filter out the sort of claims that ought not to be permitted to go for more detailed consideration in Stage 2. Bearing in mind the judge’s foreknowledge, I do not consider that one hour was arguably insufficient time for him to reach the conclusions he did. Moreover, where you are looking at an ex tempore judgment in this context, you should take into account (and in this case must take into account) that the judge is not required to articulate in the sort of detail you would expect in a substantive judgment, which is not procedural, the same level of detail as you would otherwise expect. In this context, the case of Fage UK Limited v. Chobani UK Limited [2014] EWCA Civ 5 correctly articulates from the Court of Appeal at paragraph 115:
“He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted. These are not controversial observations”.
- The whole purpose of Stage 1 is to serve the purpose of making the procedure as simple and summary as fairness permits. It is not intended to be an elaborate analysis of every nuance of the case, of every detail potentially relevant to the second phase of enquiry if it is allowed to go on there. That is why there is a first phase, to save the court the expense and time involved in what would otherwise be a more strenuous analysis. I expressed my disappointment at the beginning of this case that I was presented with no fewer than six ring binders and lever-arch files of material. This should never happen in the context of a Stage 1 hearing. That is not what it is about.
- On HHJ Carter’s exercise of discretion
- So the judge, having heard argument, reached the conclusion that the Stage 1 filtering process meant that he would permit the second defendants’ team to go forward to Stage 2, and the judge has been criticised for reaching that conclusion on a number of grounds. The first ground related to the time made available which it is said was too short. Certain points have got to be made in the context of that criticism. Firstly, this was a judge who had all of the relevant facts, having adjudicated on the trial, at his fingertips. There was no need for there to be any detailed articulation of those matters and so he was in an advantageous position. Also, during the course of the hearing the judge allowed those acting on behalf of the claimant’s solicitors the scope to develop and articulate the arguments that it was considered they reasonably should.
…
- The point is made that the judge applied the wrong Stage 1 test. I am satisfied that there is nothing in that. The judge articulated at the beginning of his judgment the test of likelihood, if I can summarise it in that way, and in the order which he made consequential upon the findings in his judgment he also expressly identified the test of likelihood as being the right one. During the course of his judgment, he identified not necessarily what were expected to be tests to go through to Stage 2, but necessarily contingent expressions which I am entirely satisfied were to allow the appellants the comfort of knowing that he had not predetermined the issue as to whether or not Stage 2 would be satisfied. His deployment of the terms which he used was not intended to be a re-examination wrongly of what the basic test was – he knew that, he had heard an hour of argument about it – but simply as a means, understandably, to reassure those acting on behalf of the appellant that this was only a contingent conclusion and of course he was not going to draw any conclusion that would seem as if he were otherwise pre-judging Stage 2. So I reject the suggestion that somehow he got it wrong. He knew what the right test was at the beginning. He got it wrong in the middle and then got it right again at the end. This was a means of expression and there is nothing substantive in that ground.
…
- It is not the function of a judge at Stage 1, effectively, to require the parties to identify the lowest or the highest possible consequences of Stage 2. There was quite enough information here to permit the judge to go ahead, and I stress that this is the exercise of the discretion, and the purpose is to fulfil the overriding objective, and it is a simple and summary procedure insofar as fairness permits. To expect more is to clutter up the courts and it is also to involve further expenditure and further delays in the resolution of the issues. Of course, if it were the case that it was unjust in some residual fashion of the exercise of the judge’s discretion to allow the matter to proceed to Stage 2, that would be a legitimate complaint. I can see no basis other than that which is entirely speculative to suggest that it was unjust. This was a judge in full command of all the facts. He heard all the arguments that there were to be had, and, in my view, I would have reached the same decision as he did. I am not just limiting my conclusions to that I may have reached a decision, but it was within the parameters of discretion; that is the decision I would have reached on the materials available to me, albeit I would be in a poorer position than that judge because I did not hear the evidence during the course of the trial.
- On privilege
- A question of privilege arises. The potential role of privilege varies enormously between one case and the next. In a number of cases where it looks as though a very unpromising case has been pursued to trial, then it puts the solicitors in an invidious position where the driving force behind that has been a client who insists – sometimes against the solicitor’s advice – that he should have his day in court. Of course, it is dangerous in those circumstances, where the client declines to waive privilege, for the court to assume that the shackled solicitors must be categorised as falling into the sort of categories that fall to be considered under a wasted costs order. This is not that sort of case.
- The criticism levelled against the claimant’s solicitors is that they drafted, relied upon and served pleadings which made allegations that were insupportable on the basis of conclusions drawn by somebody who was not of the equivalent discipline to Mr Ampat. It is a struggle to conceive of any circumstances in which that decision would have anything to do with the input of the claimant; that the idea that somehow he perused the reports and looked up Pantelli and said “Well go ahead regardless” borders (putting it bluntly) on the ludicrous.
- The fact that no attempt has been made to ask the claimant to waive privilege appears to be based on the assumption that privilege is there to protect the legal advisers rather than the client. I have got to be astute to look at the difference between this sort of case and that in which it occurs that it is just that a pretty hopeless case has been pursued to trial. It is not that sort of case. So it is hardly surprising that the judge was unimpressed by that.
- On causation
- On the issue of causation, the high water mark of the case presented on behalf of the insurers of the second defendant is that £112,000, or thereabouts, by way of costs has been wasted. That is based on the suggestion that, had the consultant spinal surgeon been engaged from the outset, then the reality is that the case would never have involved the joinder of the second defendants as defendants and parties to the action at all. That may or may not be sustainable, and I want to make it plain that I am not tempted (and it would be inappropriate for me to wade into the issue) to determine whether or not that is right, but it is a plainly articulated stance on the part of the defendants and they are entitled to articulate it on that basis without being subject to the Stage 1 criticism that somehow they have not put their cards on the table or, alternatively, what they have put forward may not be supported at Stage 2. It may or may not, but it is perfectly adequate, in my view, to be sufficient for the judge to allow the matter for a more detailed assessment at Stage 2.
