Mrs I Tierney v Represented by: Mrs A Maxwell- Ferguson - Solicitor Sky Subscribers Services Limited — 2020

At a remote preliminary hearing by telephone on 27 March 2020, the respondent applied for a wasted costs order under Rule 80 after the claimant's solicitor failed to diarise the 13 February 2020 case management hearing. The respondent argued that the omission was negligent, relied on authorities including Rider's v Horsefield and Godfrey Morgan Solicitors, and said the hearing had been wasted as a result. A sum of £375 was sought, said to be half of a fixed fee of £750 plus VAT for preparation and attendance at the hearing.

The tribunal held that the failure to make the diary entry was not negligence for Rule 80 purposes. Applying the three-stage approach to wasted costs applications and the non-technical meaning of negligent described in Medical v Marvell, the judge found that this was a one-off straightforward administrative oversight. Although the omission revealed a weakness in the firm's diary system and was an important matter, it was not treated as conduct falling below the competence reasonably expected of an ordinary member of the solicitors' profession.

The tribunal therefore refused the application. It also said that, even if the omission had been negligent, it would not have been just to make a wasted costs order in the circumstances, given the expressed regret, the fact that it was a single oversight, and the limited prejudice to the respondent, although there had been inconvenience and expense. The judge added that, had an award been made, £375 would not have been inappropriate.