32 A more recent authority is Ridehalgh v Horsefield [1994] Ch 205, a decision of the English Court of Appeal. There Sir Thomas Bingham MR said (at 225) that, if solicitors or barristers failed to observe the standards of conduct required by the Law Society or the General Council of the Bar (as the case may be) they became liable to disciplinary proceedings at the suit of their professional body and to a range of penalties which included fines, suspension from practice and expulsion from their profession. His Lordship said that procedures had changed over the years. The role of the courts in the case of solicitors and the Inns of Court in the case of barristers had in large measure been assumed by the professional bodies themselves. His Lordship continued, "But the sanctions remain, not to compensate those who have suffered loss but to compel observance of prescribed standards of professional conduct. Additional powers exist to order barristers, solicitors, and those in receipt of legal aid, to forgo fees or remuneration otherwise earnt." His Lordship added that solicitors and barristers might, in certain circumstances, be ordered to compensate a party to litigation other than the client for whom they acted for costs incurred by that party as a result of acts done or omitted by the solicitors or barristers in their conduct of the litigation. His Lordship said that it was the scope and effect of this last safeguard and its relation with the others which he had mentioned (and to which I do not refer) which were in issue in the appeals.
33 Bingham MR referred (at 226-7) to Myers v Elman. He remarked that when Myers v Elman was decided, the court's "wasted costs jurisdiction" was not regulated by the Rules of the Supreme Court with one exception to which it was unnecessary to refer. He said the rules, however, reflected no general wasted costs jurisdiction. But in 1960 a new rule which later became Order 62 r8(1) was introduced which "did regulate, although not enlarge, this inherent jurisdiction." The rule was not in terms the same as r43 of Part 52A of the rules here but the two are to similar effect.
34 In the course of his judgment in Ridehaglh, Bingham MR referred to the changes in the applicable legislation both in Acts of Parliament and in rules of court in force from time to time in the United Kingdom. We do not find it profitable to go into these various changes. He also referred to Orchard v Southeastern Electricity Board [1987] QB 565 where Donaldson MR said (at 572):
"That said, this is a jurisdiction which falls to be exercised with care and discretion and only in clear cases. In the context of a complaint that litigation was initiated or continued in circumstances in which to do so constituted serious misconduct, it must never be forgotten that it is not for solicitors or counsel to impose a pre-trial screen through which a litigant must pass before he can put his complaint before the court. On the other hand, no solicitor or counsel should lend his assistance to a litigant if he is satisfied that the initiation or further prosecution of a claim is mala fide or for an ulterior purpose or, to put it more broadly, if the proceedings would be, or have become, an abuse of the process of the court or unjustifiably oppressive."
35 Later Bingham MR referred to a phrase "improper, unreasonable or negligent" which appears in the English legislation. He discussed each of these words. We refer to what he said about "improper" and "unreasonable" but not to what he said about "negligent" because this is not a case which involves negligence. Of "improper" and "unreasonable" his Lordship said (at 232):
"'Improper' means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial)) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.
'Unreasonable' also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable."
36 There is much more in the judgment of Bingham MR but, bearing in mind the difference in the statutory language which is in force in England and the particular circumstances of the cases which Bingham MR considered, we do not find it useful to refer further to Ridehalgh. We should mention, however, that the judgment of Bingham MR was the judgment of the Court.
37 Leicester v Walton (22 November 1995, Court of Appeal, unreported) was a decision of this Court concerned with possible prejudice to the appellant's case brought about the late withdrawal of his solicitor, Mr Pike. In the course of a directions hearing, Sheller JA had ordered Mr Pike to file an affidavit explaining the circumstances under which he had purported to cease to act for the appellant and the basis upon which he claimed to have complied with the Rules in that regard. Mr Pike filed an affidavit in which he deposed to the terms of his employment by United Medical Defence that he might only provide legal services to members of the organisation if he had been instructed to do so by his employer. It is unnecessary further to refer to the contents of Mr Pike's affidavit but it is set out comprehensively in the judgment of the Court. The Court then made reference to Part 66 r7 of the Supreme Court Rules which deals with the procedure to be followed when a solicitor ceases to act for a party. The Court said (at 9) that one purpose of the rule was to prevent solicitors, without the leave of the Court, ceasing to act for a client within less than seven days of notice in writing to the client. The Court said that Mr Pike, having not applied for and obtained the leave of the Court to cease to act, should, while he remained on the record, have taken steps to ensure that the appellant complied with the Court's orders. The Court added that, while Mr Pike was still his solicitor, the appellant failed to comply with the Court's order to file submissions.
38 The Court went on to discuss the question of what was to be done to overcome the problem which confronted the Court without doing injustice to the parties. It said that the predicament in which the appellant found himself was not of his doing but of the organisation, ie Mr Pike's employer, of which he was a member. The Court made reference to s76 of the Supreme Court Act and also to s76C of that Act and Part 52A r43 of the Rules. The Court then said(at 15):
"The Court should not make an order against Mr Pike (the solicitor) for the purpose of punishing him or to demonstrate its disfavour of the way he or his employer has acted in this matter. The grounds for making an order against him must be that his action or inaction led to the incurring of costs which would not otherwise have been incurred or the wasting of costs which would not otherwise have been wasted."