Costs against a legal representative
76.9.—(1) This rule applies where—
(a)a party has incurred costs—
(i)as a result of an improper, unreasonable or negligent act or omission by a legal or other representative or representative’s employee, or
(ii)which it has become unreasonable for that party to have to pay because of such an act or omission occurring after those costs were incurred; and
(b)the court can—
(i)order the representative responsible to pay such costs, or
(ii)prohibit the payment of costs to that representative.
(2) In this rule, costs include costs met by legal aid.
(3) The court may make an order—
(a)on application by the party who incurred such costs; or
(b)on its own initiative.
(4) A party who wants the court to make an order must—
(a)apply in writing as soon as practicable after becoming aware of the grounds for doing so;
(b)serve the application on—
(i)the court officer (or, in the Court of Appeal, the Registrar),
(ii)the representative responsible,
(iii)each other party, and
(iv)any other person directly affected;
(c)in that application specify—
(i)the representative responsible,
(ii)the relevant act or omission,
(iii)the reasons why that act or omission meets the criteria for making an order,
(iv)the amount claimed, and
(v)those on whom the application has been served.
(5) Where the court considers making an order on its own initiative, it must—
(a)identify the representative against whom it proposes making that order; and
(b)specify—
(i)the relevant act or omission,
(ii)the reasons why that act or omission meets the criteria for making an order, and
(iii)with the assistance of the party who incurred the costs, the amount involved.
(6) A representative who wants to oppose an order must—
(a)make representations as soon as practicable; and
(b)in reply to an application, serve written representations on the applicant and on the court officer (or Registrar) not more than 7 days after it was served.
(7) If the court makes an order—
(a)the general rule is that it must do so without waiting until the end of the case, but it may postpone making the order; and
(b)it must assess the amount itself.
(8) Instead of making an order, the court may make adverse observations about the representative’s conduct for use in an assessment where—
(a)a party’s costs are—
(i)to be met by legal aid, or
(ii)to be paid out of central funds; or
(b)there is to be an assessment under rule 76.11.
[Note. See—
(a)rule 76.2;
(b)section 19A of the Prosecution of Offences Act 1985(1);
(c)article 17 of The Serious Crime Act 2007 (Appeals under Section 24) Order 2008(2).
The Criminal Costs Practice Direction sets out a form of application for use in connection with this rule.
Part 63 (Appeal to the Crown Court) and Part 68 (Appeal to the Court of Appeal about conviction or sentence) contain rules about appeals against a costs order to which this rule applies.]
1985 c. 23; section 19A was inserted by section 111 of the Courts and Legal Services Act 1990 (c. 41).