A successful appellant has nevertheless been hit with costs penalties after being ‘rude and abusive’ towards their opponent’s lawyers.

In Smout v Wulfrun Hotels Ltd Mr Justice Ritchie ruled that the comments made were both ‘unfair and inappropriate’, as the defendant tried to contest a claim from someone hurt when they tripped on a missing paving stone outside their property.

Ritchie said the defendant’s ‘rude and rather outrageous suggestions’ that the claimant’s firm FBC Manby Bowdler was to blame for ‘extorting money’ set the tone for the conduct of the claim.

PJ Shawker, the Wulfrun company secretary who represented the defendant throughout, wrote to the legal executive handling the file to ask for evidence this was ‘not a frivolous case where your firm has encouraged Mr P Smout to make a speculative claim’. This letter warned that by sending any further correspondence then the firm was agreeing to reimburse the defendant’s costs at £100 a letter.

The legal executive’s response was ‘wholly professional’, the court heard, but a year later Shawker wrote again, describing the client as ‘malingering’ and criticising the ‘incompetence’ of the firm, adding: ‘I must draw the inference that the money spent on legal training was wasteful. Our company has repeatedly had to put up with your pathetic assertions which have yet to be substantiated.’

Ritchie said the defendant ‘continued with the theme of written abuse’ in subsequent correspondence, including telling the legal executive that ‘if you were a solicitor, I would have struck you off for incompetence but unfortunately you never made the grade’.

Following the trial, Recorder Wilson found that the defendant was liable for failing to repair the pavement outside his property and awarded £4,000 for pain, suffering and loss of amenity, plus £25 for traveling expenses and personal care.

The recorder awarded 6% interest on damages, 10% additional liability onto damages and interest at 10% onto costs.

On appeal, the defendant submitted that the recorder should have followed the standard rule and awarded 2% on damages.

Ritchie said the court had the power to deprive a party of costs for unprofessional conduct by its representatives, but there was no case law to justify a tripling of the conventional interest rate awarded on damages.

He said it was ‘clearly wrong in law and not justifiable to award the 6% based on conduct.

‘Interest on damages is awarded to compensate the claimant for being kept out of his compensation not to punish him for his poor conduct in defending the claim,’ he added.

But the judge opted to award indemnity costs against the defendant from the start of the abusive correspondence. Despite succeeding on the appeal, Ritchie said the reason issues arose was because the defendant was abusive to the claimant and his lawyers. He therefore made no order for costs on the appeal.