Category: Legal Aid

Gudanaviciene and Others, Regina (on The Application of) v The Director of Legal Aid Casework and Others: CA 15 Dec 2014

Article 8 requires that an appeal against a deportation order by reference to it should be effective. The court
(a) cited at para 65 the decision of the ECtHR in W v United Kingdom (1988) 10 EHRR 29, para 64, to the effect that article 8 required that parents who had sought contact with a child in care should have been involved in the decision-making process to a degree sufficient to provide the requisite protection of their interests;
(b) held at para 69 that the same requirement applied to article 8 claims by immigrants; and
(c) concluded at para 70 that it amounted to a requirement that their access to the tribunal should be effective.

Judges:

Lord Dyson MR, Richards, Sullivan LJJ

Citations:

[2014] EWCA Civ 1622, [2015] 1 WLR 2247, [2014] WLR(D) 547, [2015] 3 All ER 827

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Gudanaviciene and Others v Director of Legal Aid Casework and Another Admn 13-Jun-2014
The six claimants challenged the refusal of the Director of Legal Aid Casework to grant legal aid to the claimants. The cases raise common issues concerning the availability of legal aid in immigration cases under Section 10 of the 2012 Act. . .

Cited by:

Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC 14-Jun-2017
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Immigration, Human Rights

Updated: 08 August 2022; Ref: scu.539982

Gudanaviciene and Others v Director of Legal Aid Casework and Another: Admn 13 Jun 2014

The six claimants challenged the refusal of the Director of Legal Aid Casework to grant legal aid to the claimants. The cases raise common issues concerning the availability of legal aid in immigration cases under Section 10 of the 2012 Act.

Judges:

Collins J

Citations:

[2014] EWHC 1840 (Admin), [2014] WLR(D) 266

Links:

Bailii, WLRD

Statutes:

Legal Aid, Sentencing and Punishment of Offenders Act 2012 10

Jurisdiction:

England and Wales

Cited by:

Appeal from – Gudanaviciene and Others, Regina (on The Application of) v The Director of Legal Aid Casework and Others CA 15-Dec-2014
Article 8 requires that an appeal against a deportation order by reference to it should be effective. The court
(a) cited at para 65 the decision of the ECtHR in W v United Kingdom (1988) 10 EHRR 29, para 64, to the effect that article 8 . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Immigration

Updated: 07 August 2022; Ref: scu.526584

Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: CA 22 May 2013

The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for her appeal, and now appealed against its refusal.
Held: The appeal failed. The respondent’s policy was clear and longstanding.
Lord Dyson MR said: ‘ It is clearly established that a public body may not unlawfully fetter the exercise of a discretionary statutory power: see, for example, British Oxygen Co Ltd v Board of Trade [1971] AC 610. But where a policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion), there is no rule of law which requires the decision-maker to consider the facts of every case with a view to deciding whether, exceptionally, to depart from the policy in a particular case. This is because ‘it is within the power of the decision-maker to decide on the extent to which the power is to be exercised in, for example, setting up a scheme. He can decide on broad and clear criteria and either that there are no exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be’: R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, para 191.’
As to the death penalty: ‘the death penalty is (in my view) rightly regarded by the Government as immoral and unacceptable’

Judges:

Lord Dyson MR, Elias, Patten LJJ

Citations:

[2013] EWCA Civ 581, [2013] 3 All ER 757, [2013] WLR(D) 201, [2013] 1 WLR 2938

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Appeal from – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 4-Feb-2013
The claimant was facing trial in Bali which would eventually lead to a sentence of death. She complained of inadequate legal assistance before and at the trial. She had been represented by a local lawyer, paid with funds (andpound;5,000) raised by . .
Cited – Zagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Cited – Al-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – X v United Kingdom ECHR 15-Dec-1977
(Commission) The British court had ordered a Jordanian father to return his daughter to England. The English mother contacted the British consulate in Amman asking it to ‘obtain the custody of her daughter from the Jordanian Court’. The Consulate . .
Cited – Regina (Abbasi) v Secretary of State for Foreign Affairs CA 6-Nov-2002
There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its . .
Cited – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
Cited – Secretary of State for Defence v Elias CA 10-Oct-2006
The claimant said that a scheme drawn by the defendant for compensating British civilians interned by the Japanese during the second world war was indirectly discriminatory on racial grounds by requiring a national origin link with the UK. She had . .

Cited by:

Appeal from – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
Cited – Elgizouli v Secretary of State for The Home Department SC 25-Mar-2020
‘The issue in this case is the legality of the Government’s decision to provide mutual legal assistance to the United States – in the shape of the product of police enquiries – to facilitate the prosecution of the claimant’s son in the United States . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Human Rights, European

Updated: 06 August 2022; Ref: scu.510013

Stein v Blake: HL 18 May 1995

Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while attempting to pursue a claim against someone else. In some cases, the bankruptcy will itself have been caused by the failure of the other party to meet his obligations. In many more cases, this will be the view of the bankrupt. It is not unusual in such circumstances for there to be a difference of opinion between the trustee and the bankrupt over whether a claim should be pursued. The trustee may have nothing in his hands with which to fund litigation. Even if he has, he must act in the interests of creditors generally and the creditors will often prefer to receive an immediate distribution rather than see the bankrupt’s assets ventured on the costs of litigation which may or may not yield a larger distribution at some future date. The bankrupt, with nothing more to lose, tends to take a more sanguine view of the prospects of success. In such a case the trustee may decide, as in this case, that the practical course in the interests of all concerned (apart from the defendant) is to assign the claim to the bankrupt and let him pursue it for himself, on terms that he accounts to the trustee for some proportion of the proceeds.
It is understandable that a defendant who does not share the bankrupt’s view of the merits of the claim may be disappointed to find that notwithstanding the bankruptcy, which he thought would result in a practical commercial decision by an independent trustee to discontinue the proceedings, the action is still being pursued by the bankrupt. His disappointment is increased if he finds that the bankrupt as plaintiff in his own name has the benefit of legal aid which would not have been available to the trustee. Similar considerations apply to an assignment of a right of action by the liquidator of an insolvent company to a shareholder or former director. In such a case there is the further point that the company as plaintiff can be required to give security for costs. The shareholder assignee as an individual cannot be required to give security even if (either because he does not qualify or the Legal Aid Board considers that the claim has no merits) he is not in receipt of legal aid’.

Judges:

Lord Keith of Kinkel, Lord Ackner, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Hoffmann

Citations:

Independent 19-May-1995, Times 19-May-1995, [1996] 1 AC 243, [1995] UKHL 11, [1995] 2 All ER 961, [1995] 2 WLR 710, [1995] 2 BCLC 94

Links:

Bailii

Statutes:

Insolvency Act 1986 323

Jurisdiction:

England and Wales

Citing:

Appeal from – Stein v Blake CA 13-May-1993
The plaintiff argued that: ‘Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off.’
Held: The decision . .

Cited by:

Applied – Circuit Systems Ltd (In Liquidation) and Another v Zuken Redac (Uk) Ltd CA 5-Apr-1996
The assignment of a debt by a company in liquidation to a significant shareholder, in order to allow him to make an application for legal aid, and to avoid having to give security for costs and to allow the action to proceed was not unlawful, but . .
Cited – Mulkerrins v Pricewaterhouse Coopers HL 31-Jul-2003
The claimant sought damages from her former accountants for failing to protect her from bankruptcy. The receiver had unnecessarily caused great difficulties in making their claim that such an action vested in them. The defendants had subsequently, . .
Cited – Secretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
Cited – Fuller v Happy Shopper Markets Ltd and Another ChD 6-Mar-2001
A tenant complained to the landlord about his failure to repair. He ceased paying rent, and the landlord eventually distrained for rent by direct action.
Held: The tenant was unable to claim a legal set-off because there was no context of . .
See Also – Stein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
See Also – Stein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
See Also – Stein v Blake ChD 31-Oct-2000
When a Legal Aid certificate was withdrawn, leading to an opposing party suffering abortive costs in continuing the action, it was not a duty of the Legal Services Commission to inform the opposing side. They would have no access to arrangements . .
Cited – In re Kaupthing Singer and Friedlander Ltd SC 19-Oct-2011
The bank had been put into administrative receivership, and the court was now asked as to how distributions were to be made, and in particular as to the application of the equitable rule in Cherry v Boultbee in the rule against double proof as it . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Legal Aid

Updated: 03 August 2022; Ref: scu.89537

Hale, Regina (On the Application of) v North Sefton Justices: Admn 14 Jan 2002

The court considered the words ‘in the proceedings’ in Regulation 7 of the 1986 Regulations. One issue was whether claims for attendance on the claimant prior to charge are for expenses incurred by the claimant ‘in the proceedings’. The court decided that claims for attendance prior to charge were encompassed by those words. Instructions were given at a time when charge was imminent and the bail on which the claimant had been placed was about to expire.
Auld LJ said: ‘It seems to me that on a sensible approach it cannot reasonably be said that the advice sought and given at the initial attendance was not ‘in the proceedings’ simply because the charge had not yet been preferred.’

Judges:

Auld LJ, Gage J

Citations:

[2002] EWHC 257 (Admin)

Links:

Bailii

Statutes:

Costs in Criminal Cases (General) Regulations 1986 7

Cited by:

Cited – Coulson v Newsgroup Newspapers Ltd QBD 21-Dec-2011
The claimant had been employed by the defendant as editor of a newspaper. On leaving they entered into an agreement which the claimant said required the defendant to pay his legal costs in any action arising regarding his editorship. The defendant . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Aid

Updated: 30 July 2022; Ref: scu.347789

Lord Chancellor v Rees and others: QBD 19 Dec 2008

Sir Charles Gray considered an appeal against the findings of a costs judge, saying: ‘it appears to me that it is incumbent on the Lord Chancellor in any appeal to the High Court to identify some question of law or principle which arises, since the High Court would be slow to differ from the assessment of the Costs Judge on an issue of fact or judgment.’

Judges:

Sir Charles Gray

Citations:

[2009] 1 All ER 163, [2008] EWHC 3168 (QB)

Links:

Bailii

Statutes:

Criminal Defence Service (Funding) Order 2001

Jurisdiction:

England and Wales

Cited by:

Cited – Lord Chancellor v Ian Henery Solicitors Ltd QBD 8-Dec-2011
The court heard a challenge to arrangements within the graduated fees scheme for payment of defence lawyers, and in particular ‘when does a trial begin?’ and whether a case should be paid as a ‘trial’ or as a ‘cracked trial’. The trial had been . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 30 July 2022; Ref: scu.296307

McGeoch, Re Judicial Review: SCS 15 Jan 2013

(Outer House, Court of Session) Challenge to refusal of legal aid.

Judges:

Lord Brodie

Citations:

[2013] ScotCS CSOH – 6, 2013 SLT 183, 2013 GWD 3-88

Links:

Bailii

Statutes:

Legal Aid (Scotland) Act 1986

Jurisdiction:

Scotland

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 28 July 2022; Ref: scu.470537

Ram, Regina (on the Application Of) v Parole Board: Admn 12 Jan 2004

The claimant had won an action for damages against the respondent. He was however released on licence, and subsequently became unlawfully at large. The question was whether the damages continued to be payable to him. The defendant insisted that the sum could only be paid personally, which would allow his arrest. The legal aid provisions require damages to be paid through the solicitors, so as to allow enforcement of the statutory charge.
Held: At the time of the award, the claimant was lawfully at large. As to the application for leave to appeal, it could not be said that the claimant’s recall was not foreseeable, and therefore the conditions in Barder were not fulfilled. On the other hand specific performance as requested by the claimant was not available against the Crown under the 1947 Act save by discretion. That discretion could be exercised here to disallow any payment getting to the claimant whilst he was unlawfully at large.

Judges:

Crane J

Citations:

[2004] EWHC 1 (Admin)

Links:

Bailii

Statutes:

Access to Justice Act 1999 10(7), Community Legal Service (Costs) Regulations 2000 18, Crown Proceedings Act 1947 25

Jurisdiction:

England and Wales

Citing:

Cited – Barder v Barder; Barder v Caluori HL 1988
Later Event no ground to appeal from consent order
The matrimonial home had been owned jointly by the husband and wife. In divorce proceedings, an order was made by consent that the husband should transfer his interest in the home to the wife within 28 days. Before the order had been executed, the . .
Approved – S v S (Ancillary Relief: Consent Order) FD 4-Mar-2002
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . .
Cited – Lamare v Dixon HL 1873
The respondent resisted an order for specific performance of a contract, saying that the plaintiffs had reneged on an essential promise in a collateral contract.
Held: The defence failed. Lord Chelmsford said: ‘The exercise of the jurisdiction . .
Lists of cited by and citing cases may be incomplete.

Damages, Legal Aid

Updated: 21 July 2022; Ref: scu.191230

Stephen v Information Commissioner: FTTGRC 10 Oct 2013

FTTGc This case arises out of the publication by the Lancet in 1998 of the flawed paper by Andrew Wakefield et al which led to the MMR scare. The Legal Aid Board supported proceedings by parents against the pharmaceutical companies. In 2006 the statutory successor to the Board – the Legal Services Commission (LSC) provided some of its documents relating to this funding to the General Medical Council (GMC) for the purposes of its disciplinary proceedings against Wakefield. The claimant sought disclosure of documents relating to the grant of Legal Aid.

Citations:

[2013] UKFTT EA – 2013 – 0109 (GRC

Links:

Bailii

Statutes:

Freedom of Information Act 2000

Jurisdiction:

England and Wales

Information, Legal Aid

Updated: 21 July 2022; Ref: scu.517992

The Public Law Project, Regina (on The Application of) v Lord Chancellor: SC 13 Jul 2016

Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the provisions of the relevant enabling Act.
Held: The appeal succeeded as to the ultra vires issue.
Lord Neuberger said: ‘Turning to section 9(2)(b) itself, as a matter of ordinary language, the relevant parts of the draft order do not seek to ‘vary or omit services’: rather they seek to reduce the class of individuals who are entitled to receive those services by reference to a personal characteristic or circumstance unrelated to the services. Of course, the words of section 9(2)(b) have to be interpreted in their context, and I accept that a sufficiently clear and strong context could justify a different conclusion, in the sense that the words of section 9(2)(b) could, as a matter of language, just about extend to a regulation such as the draft order. Nonetheless, that is not their natural meaning, and, of course, the natural meaning of the words in question is an important factor in an issue of statutory interpretation, particularly when they suggest that a so-called Henry VIII power does not extend to authorise the subordinate legislation in question.’
Lord Neuberger of Abbotsbury PSC, with the agreement of the other members of the court, cited with approval the following passage in Craies on Legislation, 10th ed (2012), edited by Daniel Greenberg, at para 1.3.11: ‘as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words used by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes, Lord Toulson

Citations:

[2016] UKSC 39, [2016] AC 153, [2016] HRLR 17, [2016] WLR(D) 384, [2016] 3 WLR 387, UKSC 2015/0255

Links:

Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary video, SC Vid am, SC video pm

Statutes:

Legal Aid, Sentencing and Punishment of Offenders Act 2012 9

Jurisdiction:

England and Wales

Citing:

At Admn – The Public Law Project, Regina (on The Application of) v The Secretary of State for Justice The Office of The Children’s Commissioner Admn 15-Jul-2014
The claimant challenged the lawfulness of the 2014 Regulations which amended the entitlement to legal aid for those failing a residence test: ‘ the effect of this amendment will be to exclude those who have a better than fifty-fifty chance of . .
At CA – Public Law Project v The Lord Chancellor and Another CA 25-Nov-2015
Lord Chancellor’s appeal, with permission granted by the court below, against the decision of the Divisional Court granting a declaration that legislation which the Lord Chancellor proposed to introduce by statutory instrument would be unlawful. Mr . .
Cited – Westminster Bank Limited v The Minister for Housing and Local Government, Beverley Borough Council HL 1971
The Bank’s application for planning permission was refused on the grounds that the development might prejudice the possible future widening of a road. The local authority could have prescribed a building line in accordance with a provision of the . .
Cited – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Cited – Silver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .
Cited – Malone v The United Kingdom ECHR 2-Aug-1984
COURT (PLENARY) The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in . .
Cited – McKiernon v Secretary of State for Social Security CA 26-Oct-1989
A statute granting a power to be amended by a subordinate instrument can only do so by an express power: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination . .
Cited – Regina v Secretary of State for Social Security, Ex parte Britnell (Alan) HL 1991
The applicant claimed and was paid benefits. There was later determined to have been an overpayment. A sum was recovered by deductions, but then he was granted only supplementary allowance. No deductions could be made from that, but the respondent . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .

Cited by:

Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Ingenious Media Holdings Plc and Another, Regina (on The Application of) v Revenue and Customs SC 19-Oct-2016
The tax payer complained that the Permanent Secretary for Tax had, in an off the record briefing disclosed tax details regarding a film investment scheme. Despite the off the record basis, details were published in a newspaper. His claims had been . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Constitutional

Updated: 19 July 2022; Ref: scu.566880

Beechwood Construction Ltd v Afza and Another: ChD 31 Oct 2008

The appellant appealed against a final third party debt order in the form of a charge over damages awarded in an action where the party had been legally aided, and the debt was charged in favour of the Legal Services Commission.
Appeal from third party debt order.

Judges:

Behrens J

Citations:

[2008] EWHC B18 (Ch), [2008] EWHC 2671 (Ch), [2009] BPIR 7

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Legal Aid

Updated: 18 July 2022; Ref: scu.346876

David Truex, Solicitor (A Firm) v Kitchin: CA 4 Jul 2007

The claimant solicitors sought payment of their fees. The defendant claimed they had been negligent in not advising her that she might be entitled to legal aid. The firm had pointed out to her that they did not undertake legal aid work, and that she could choose another firm if she wished.
Held: The firm’s appeal was dismissed.

Judges:

Waller, Lawrence Collins LJJ

Citations:

[2007] 2 FLR 1203, [2007] Fam Law 903, [2007] NPC 87, [2007] 4 Costs LR 587, [2007] PNLR 33, [2007] EWCA Civ 618

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leave – David Truex, Solicitor (A Firm) v Kitchen CA 3-Nov-2006
Application for leave to appeal – granted. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Legal Aid

Updated: 11 July 2022; Ref: scu.254541

Loic Lallemand-Zeller v Commission of the European Communities: ECFI 14 Jan 1993

ECJ Procedure – Time-limit for bringing proceedings – Application for legal aid – Lodging of the application without the assistance of a lawyer within the time prescribed for bringing proceedings but prior to the initiation of proceedings – Suspension of the time-limit for bringing proceedings – (Rules of Procedure of the Court of First Instance, Art. 94)
The lodging of an application for legal aid without the assistance of a lawyer, within the time prescribed for bringing proceedings but prior to the initiation of proceedings, prevents time from running until the applicant is served with the order of the Court.

Citations:

T-92/92, [1993] EUECJ T-92/92

Links:

Bailii

Jurisdiction:

European

Legal Aid

Updated: 10 July 2022; Ref: scu.172608

Richards v The Legal Services Commission: Admn 19 Jul 2006

The claimant challenged the inclusion in her gross income for calculation of her eligibility to legal aid of maintenance payments received for her children who were both at University. She said that since she had responsibility for their maintenance, and they were studying away from home, they were not part of her household, and a deduction could be made.
Held: ‘whether a child remains a member of a household is just as much a function of attitude (and, perhaps, emotion) as an application of a simple test of hours spent in the home. A student taking a gap year prior to university may not set foot in his or her parents’ home for an entire year, but could still remain a member of the household. In each case, the question is one of fact having regard to all the circumstances of residence, relationship and ties. ‘ The court could not say that the LSC had not been entitled to conclude that the sons remained part of the household.

Citations:

[2006] EWHC 1809 (Admin)

Links:

Bailii

Statutes:

Access to Justice Act 1999, Community Legal Service (Financial) Regulations 2000

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Birmingham Juvenile Court Ex Parte S 1984
The court considered what was meant by the term ‘household’: ‘at the heart of the concept it is the persons who comprise the household . . and not the place where the household is located as a matter of residence.’ . .
Cited – London Borough of Hackney v Ezedinma QBD 1981
The house had rooms let for students in the basement and on the ground, first and second floors, with kitchens on the top three floors to serve the rooms. Five rooms had been let when the authority issued a notice under section 19(1) to restrict the . .
Cited – Simmons v Pizzey HL 1979
As to houses in multiple occupation, ‘both the expression ‘household’ and membership of it is a question of fact and degree, there being no certain indicia the presence or absence of any of which is by itself conclusive’. After reference to the the . .
Cited – England v Secretary of State for Social Services 1982
Although the children spent weekdays in voluntary care because the parents were at work, their bedrooms were maintained, they saw their parents on the weekend, and the arrangement was not intended as permanent. The court was asked whether they . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 07 July 2022; Ref: scu.243328

D and D W v Portsmouth Hospital NHS; in re W (A Child): CA 3 May 2006

The claimants had sought court orders against the hospital to secure continuing life-supporting treatment for their daughter who had been born very severely disabled. The Trust now sought their costs from the various actions.
Held: The parents should pay nothing: ‘We are very conscious of the fact that W continues to be treated by the Trust. It would, in our view, be an aggravating factor in the relationship between Mr and Mrs W and the Trust were they to be engaged in ongoing litigation over costs’ and ‘the whole exercise set out in this judgment could have been avoided if the parties had taken proper note of Laws LJ’s observations set out in paragraph 11 above. The point should not have been contentious. Whether or not the Trust succeeds against the Legal Services Commission is not a matter for this court, nor is it of any personal financial interest to Mr. and Mrs. W. Instead of a sensible recognition that, in a case of this nature, the Trust was entitled to ask that the LSC reimburse it a relatively small proportion of the costs it has expended on this case overall, we have had a plethora of skeleton arguments and a full hearing.’

Judges:

Laws LJ, Wall LJ, Lloyd LJ

Citations:

Times 08-Jun-2006, [2006] EWCA Civ 529, [2006] 5 Costs LR 742

Links:

Bailii

Statutes:

Access to Justice Act 1999 11(1)

Jurisdiction:

England and Wales

Citing:

See Also – Wyatt and Another v Portsmouth Hospital NHS and Another CA 12-Oct-2005
The appellants’ daughter had been born with very severe disabilities. Her doctors obtained an order allowing them a discretion not to ventilate her to keep her alive if necessary. She had improved, but the family now sought leave to appeal an order . .
Cited – Regina (Gunn) v Secretary of State for the Home Department Regina (Kelly) v Same Regina (Zahid Khan) v Same CA 14-Jun-2001
The new Regulations and court rules expressly reserved to a costs judge the decision about whether a costs order should be made against the Legal Services Commission. The former practice of the trial judge making this decision must no longer apply. . .
Cited – Masterman-Lister v Brutton and Co and Another (2) CA 16-Jan-2003
The claimant had been funded for a personal injury claim under legal aid. He appealed against a decision that he was not a ‘patient’ and that he had been fully capable of managing and administering his affairs for many years. He lost. The . .
Cited – In re T (A Child), (Order for Costs) CA 21-Mar-2005
The court re-affirmed what were described as the ‘well-established principles’ relating to costs in private law applications. . .
Cited – Burke, Regina (on the Application of) v General Medical Council and others (Official Solicitor and others intervening) CA 28-Jul-2005
The claimant suffered a congenital degenerative brain condition inevitably resulting in a future need to receive nutrition and hydration by artificial means. He was concerned that a decision might be taken by medical practitioners responsible for . .
Cited – In Re O (A Minor) (Costs:Liability of Legal Aid Board); orse Re O (A Minor) (Legal Aid Costs) CA 25-Nov-1996
Grandparents should have conceded at an early stage in the Court of Appeal that an order made by the judge in proceedings relating to their grandchild had been made without jurisdiction.
Held: The court considered the procedures for applying . .

Cited by:

Cited – Floyd and Another v Legal Services Commission QBD 28-Apr-2010
The claimant had succeeded in an action against her legally aided opponent, but then delayed in making her claim for costs against the respondent. The costs judge said that the CPR did not apply, and that he had no discretion to extend the time . .
Lists of cited by and citing cases may be incomplete.

Health, Costs, Legal Aid

Updated: 06 July 2022; Ref: scu.241409

Secretary of State for Constitutional Affairs v Stork: QBD 3 Aug 2005

The barrister claimant challenged the system of payment of barristers contained in the Graduated Fees Scheme.
Held: the system imposed a new regime, and it was inappropriate to seek to impose on it ideas from previous systems of payment, including particularly the payment of refreshers.

Judges:

Gray J

Citations:

[2005] EWHC 1763 (QB), Times 07-Oct-2005

Links:

Bailii

Statutes:

Criminal Defence Service (Funding) Order 2001

Jurisdiction:

England and Wales

Citing:

Cited – Loveday v Renton (No 2) 1992
A brief fee might include work done during the course of a trial. The appropriateness of the approach and the need for elements to be calculated according to the value at stake and the hourly expense rate are to be calculated realistically. . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions, Legal Aid

Updated: 04 July 2022; Ref: scu.229756

Berry Trade Ltd and Another v Moussavi and Others: CA 21 Mar 2002

The respondent had, it was alleged, had breached worldwide asset freezing orders, and was liable to be committed to prison. Legal Aid was refused by the Legal Services Commission. After several adjournments, the other party offered to pay for solicitor and counsel of his choice. He refused.
Held: An application could not proceed without proper opportunity for the contemnor to obtain representation of his choice. Contempt proceedings are criminal proceedings for the purposes of Human Rights law. One more opportunity should be given for him to obtain legal aid, and the court would then look again at alternatives.

Judges:

Lord Justice Potter, Lord Justice Mummery and Lady Justice Arden

Citations:

Times 10-Apr-2002, Gazette 23-May-2002, [2002] EWCA Civ 477, [2002] BPIR 881, [2002] 1 WLR 1910

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Citing:

Cited – Croissant v Germany ECHR 25-Sep-1992
Hudoc No violation of Art. 6-1; No violation of Art. 6-3-c
‘[I]t is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When . .

Cited by:

Cited – BNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Contempt of Court, Human Rights

Updated: 29 June 2022; Ref: scu.168534

The Legal Services Commission v F and Others: QBD 8 Apr 2011

The LSC appealed against the award of costs to third parties who had been interveners in the ancillary relief litigation, and who had been successful in it.

Judges:

Sharp J

Citations:

[2011] EWHC 899 (QB), [2011] 2 FLR 1105, [2011] Fam Law 796, [2011] 5 Costs LR 740

Links:

Bailii

Statutes:

Community Legal Service (Cost Protection) Regulations 2000

Jurisdiction:

England and Wales

Family, Costs, Legal Aid

Updated: 29 June 2022; Ref: scu.431903

Bhamjee, Re an Application for Permission: Admn 14 Jul 2003

Judges:

Sullivan J

Citations:

[2003] EWHC 1808 (Admin)

Links:

Bailii

Citing:

See Also – Bhamjee v Secretary of State for the Environment, Transpost and the Regions and Another Admn 23-Jan-2001
. .
See Also – Bhamjee, Regina (on the Application of) v Secretary of State for Environment, Transport and Regions and Another CA 29-Jun-2001
. .
See Also – Bhamjee, Regina (on the Application Of) v Secretary of State for the Environment, Transpost and the Regions and Another Admn 9-Nov-2001
. .
See Also – Bhamjee, Regina (on the Application of) v Secretary of State for Transport, Local Government and Regions and Another CA 28-Feb-2002
. .
See Also – Bhamjee v Secretary of State for Environment, Transport and Regions and Another CA 21-Jun-2002
. .
See Also – Bhamjee v Secretary of State for Environment, Transport and Regions and Another CA 21-Jun-2002
. .
See Also – Bhamjee v Forsdick and others CA 14-May-2003
. .

Cited by:

See also – Bhamjee v Forsdick and Others (No 2) CA 25-Jul-2003
The Court set out the range of remedies available to protect court processes from abuse by litigants who persist in making applications totally devoid of merit. The courts are facing very serious contemporary problems created by the activities of . .
See Also – Attorney General v Bhamjee Admn 8-Dec-2003
Civil Restraint Order . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 28 June 2022; Ref: scu.220578

DN (By her Father and Litigation Friend RN) v London Borough of Greenwich: CA 8 Dec 2004

The defendant sought to appeal her case.
Held: There were serious deficiencies in the way her case had been prepared as a result of severe limitations on the public funding available to conduct the case. The trial process could not in this case be seen as satisfactory.

Judges:

Lord Justice Brooke Sir Martin Nourse Lord Justice May The Vice President Of The Court Of Appeal (Civil Division)

Citations:

[2004] EWCA Civ 1659, Times 23-Dec-2004

Links:

Bailii

Jurisdiction:

England and Wales

Education, Negligence, Legal Aid

Updated: 27 June 2022; Ref: scu.220213

Bewry, Regina (on the Application of) v Legal Services Commission: CA 11 May 2001

The claimant sought leave to appeal against refusal of his claim for judicial review of a decision by the repondent to grant him exceptional funding for legal representation in a claim before an Employment Tribunal.
Held: Leave was refused. The judge’s dismissal of the application was inevitable.

Judges:

Robert Walker LJ

Citations:

[2001] EWCA Civ 731

Links:

Bailii

Statutes:

Access to Justice Act 1999 6(8)(b)

Jurisdiction:

England and Wales

Legal Aid

Updated: 27 June 2022; Ref: scu.218152

Sayers v Clarke Walker (A Firm): CA 10 Jul 2002

Citations:

[2002] EWCA Civ 1110, [2002] 1 WLR 3095

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Sayers v Clarke Walker (A firm) CA 14-May-2002
In a case of any complexity, when an appeal court considered an application for leave to appeal which was filed out of time, it should have in mind the matters listed in the rules. It was not appropriate to use judge made checklists where one was . .
See Also – Sayers v Clarke Walker (A Firm) CA 26-Jun-2002
. .

Cited by:

See Also – Sayers v Clarke Walker (A Firm) CA 26-Jun-2002
. .
See Also – Sayers v Clarke Walker (A firm) CA 14-May-2002
In a case of any complexity, when an appeal court considered an application for leave to appeal which was filed out of time, it should have in mind the matters listed in the rules. It was not appropriate to use judge made checklists where one was . .
Cited – Floyd and Another v Legal Services Commission QBD 28-Apr-2010
The claimant had succeeded in an action against her legally aided opponent, but then delayed in making her claim for costs against the respondent. The costs judge said that the CPR did not apply, and that he had no discretion to extend the time . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Aid

Updated: 21 June 2022; Ref: scu.217479

Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham: CA 15 Oct 2004

The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The two regimes differed as to the limits applied to sums recoverable from the Legal Service Commission. The judge made an order for assessment of the council’s costs of the substantive hearing and directed that they should be set off against the claimant’s costs of the permission application.
Held: The appeal was not to be allowed, and the authority could set off its claim. Though an order had been made in favour of the claimant at one stage, the defendants could set off the later order. The result was noted by the court as disturbing because of the adverse effect it might have on an already unprofitable area of practice.

Judges:

Lord Justice Brooke Lord Justice Buxton Lord Justice Carnwath The Vice President Of The Court Of Appeal (Civil Division)

Citations:

[2004] EWCA Civ 1342, Times 20-Oct-2004

Links:

Bailii

Statutes:

Community Legal Services (Costs) Regulations 2000

Jurisdiction:

England and Wales

Citing:

Cited – Lockley v National Blood Transfusion Service CA 1992
There was an interlocutory dispute over the granting of an extension of time for service of the defence. The legally aided plaintiff challenged the costs orders made by the district registrar and the judge. Each ordered that the costs be the . .
Cited – Re A Debtor CA 9-Feb-1981
The husband opposed assisted proceedings brought by his wife, in which he was ordered to pay a sum of costs. He did not pay, and the Law Society brought proceedings against him for their recovery. He sought to set-off against that claim a debt . .
Cited – Barker v Hemming 1880
. .
Cited – Edwards v Hope CA 1885
Set off of costs against damages award. . .
Cited – Blakey v Latham 1889
The court considered its power to award of set-off as between the costs in an action and the award of damages to the other party. ‘How can any solicitor possibly have an equity against B to make B pay costs which B is ordered to pay to A when B . .
Cited – Anderson v Hills Automobiles (Woodford) Ltd 1965
. .
Cited – Goodfellow v Gray 1899
A right of set-off could be allowed against damages due on a judgment in another action. . .
Cited – Reid v Cupper 1915
A judge was entitled to make an order setting off one party’s costs in an action against the other party’s costs in a different action by reliance not on the language of Order LXV r 14, but on the old discretionary practice of the courts. The court . .
Cited – David v Rees 1904
. .
Cited – Izzo v Philip Ross and Co (a Firm) ChD 31-Jul-2001
Whilst litigants in person should be allowed the assistance of a McKenzie friend, the duties of the friend should not normally include representation and advocacy. Nevertheless, each case should be viewed separately, and applications for permission . .
Cited – Hanak v Green CA 1958
A builder was sued for his failure to complete the works he had contracted for. The buider sought a set-off against that claim of three of his one claims. One, under the contract, was for losses from the defendant’s refusal to allow his workmen . .
Cited – In re A Debtor 1951
. .
Cited – In re a Bankruptcy Notice CA 1934
. .
Cited – Knight v Knight 1925
. .
Cited – Puddephatt v Leith (No 2) 1916
. .
Cited – Federal Commerce Ltd v Molena Alpha Inc; (The ‘Nanfri’) CA 1978
The court considered whether claim as against a shipowner could be set off against sums due under a time charter hire.
Held: Save for any contractual provision to the contrary a tenant is entitled to deduct from the rent payable, so as to . .
Cited – Hill v Bailey ChD 25-Nov-2003
Costs orders had been made against each party in favour of the other. One was legally aided.
Held: Though the legally aided party was entitled to some protection against enforcement of an order for costs, he was not protected against the other . .
Cited – National Westminster Bank plc v Skelton (Note) 1993
The court distinguished a claim by the mortgagee for possession from a claim on the mortgagor’s personal covenant to pay what was due. A claim for a set-off is merely a sub-species of counterclaim. The court will not readily imply a term into a . .
Cited – Smith v Muscat CA 10-Jul-2003
The tenant was sued by his landlord for arrears of rent, but sought an equitable set-off for damages for disrepair accruing under the previous landlord.
Held: If the entitlement to recover arrears of rent passes from assignor to assignee, and . .
Cited – Hicks v Russell Jones and Walker 27-Oct-2000
. .
Per Incuriam – Carr v Boxall 1960
. .

Cited by:

Cited – Waltham Forest v Maloba, The Law Society CA 4-Dec-2007
The applicant had been refused accomodation as homeless after disclosing the ownership of a family home in Uganda. He had lived and worked in the UK for 15 years. The authority did not accept that it had later been repossessed. The council now . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Aid

Updated: 21 June 2022; Ref: scu.216442

Hanning v Maitland (No 2): CA 1970

Edmund Davies LJ rejected ‘serious impoverishment’ as a description of the test for severe financial hardship in the context of a Legal Aid: ‘the statute does not make impoverishment a prerequisite to the granting of relief to the unassisted litigant.’ The phrase should be given an expansive interpretation rather than a narrow one.

Judges:

Edmund Davies LJ

Citations:

[1970] 1 QB 580

Jurisdiction:

England and Wales

Cited by:

Cited – Webb v Macdonald and Another ChD 29-Jan-2010
Defendant barrister and solicitors applied to have the claims against them for professional negligence struck out. They had advised on a settlement of a dispute, which settlement the claimant now said was negligently wrong.
Held: The advice . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 21 June 2022; Ref: scu.396471

Crystall v Crystall: CA 1963

When considering an order that a legally aided party should pay all or part of any costs, one of the circumstances, and a compelling circumstance, is the means of the party himself. Whatever one may think of the conduct of a party it would still not be right to make an order for costs against him which was unreasonable having regard to his means.

Judges:

Willmer LJ

Citations:

[1963] 1 WLR 574, [1963] 2 All ER 330

Statutes:

Legal Aid Act 1949 2(2)(c)

Jurisdiction:

England and Wales

Cited by:

Cited – Fowler De Pledge (A Firm) v Smith CA 20-May-2003
The appellant sought two permissions to appeal. Having at one stage been legally aided in proceedings, a claim for his solicitors costs had been compromised. The court records were imperfect. It was not clear whether a circuit judge sitting as a . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 10 June 2022; Ref: scu.182737

Hill v Bailey: ChD 25 Nov 2003

Costs orders had been made against each party in favour of the other. One was legally aided.
Held: Though the legally aided party was entitled to some protection against enforcement of an order for costs, he was not protected against the other party exercising a right of set off under the mutual costs orders. A set-off does not place the person against whom it is asserted under any obligation to pay, but merely reduces the amount that he can recover.

Judges:

Lightman J

Citations:

Times 05-Jan-2004, Gazette 15-Jan-2004, [2004] 1 All ER 1210, [2003] EWHC 2835 (Ch), [2004] 1 All ER 1210, [2004] CP Rep 24, [2004] 1 Costs LR 135

Links:

Bailii

Statutes:

Access to Justice Act 1999 11

Jurisdiction:

England and Wales

Citing:

Applied – Lockley v National Blood Transfusion Service CA 1992
There was an interlocutory dispute over the granting of an extension of time for service of the defence. The legally aided plaintiff challenged the costs orders made by the district registrar and the judge. Each ordered that the costs be the . .
Cited – Hicks v Russell Jones and Walker 27-Oct-2000
. .

Cited by:

Cited – Sonia Burkett, Regina (on the Application of) v London Borough of Hammersmith and Fulham CA 15-Oct-2004
The appellant challenged an order for costs after dismissal of her application for judicial review of the respondent’s planning decision. The claimant had been granted legal aid at about the time of the bringing in of the new legal aid scheme. The . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Aid, Litigation Practice

Updated: 08 June 2022; Ref: scu.190227

Perotti v Collyer-Bristow (A Firm) and others: CA 6 Oct 2003

So far as civil proceedings are concerned, the funding of particular cases by civil legal aid was a matter for the Legal Services Commission. The courts have no residual power to make an order for assistance. The most it could do would be to indicate that it considered legal representation to be necessary to avoid the claimant’s human rights being infringed.

Judges:

Chadwick, Carnwath LJJ

Citations:

[2003] EWCA Civ 1521, Times 27-Nov-2003

Links:

Bailii

Statutes:

European Convention on Human Rights 6(1)

Jurisdiction:

England and Wales

Citing:

See also – Perotti v Collyer-Bristow (A Firm) CA 21-May-2004
The claimant had been dissatisfied with the way in which the defendant had administered the estate of his deceased uncle. The court had faced 14 applications by him.
Held: ‘They are all totally devoid of merit. They were all made long after . .
See also – Perotti v Watson and others CA 26-Feb-2004
The appellant seeking leave to appeal had previously asked for legal assistance. Mr Perottis had been involved in litigation against his father’s administrator over many years. A civil restraint order had been made against him. The first defendant . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Aid, Human Rights

Updated: 08 June 2022; Ref: scu.187580

Khan, Regina (on the Application of) v Secretary of State for Health: CA 10 Oct 2003

The claimant’s child had died as a result of negligence in hospital. The parents had been told the result of police investigation and decision not to prosecute, and the hospital’s own investigation, but had not been sufficiently involved. There remained unresolved suspicions of negligence having been covered up. They had been refused legal aid to be represented at the inquest.
Held: ‘Where agents of a state bear potential responsibility for the loss of a human life, the state should provide a procedural mechanism whereby the cause of death may be investigated, and responsibility for the death ascertained, through an investigation held in public which must be both judicial and effective; The Convention is not prescriptive about the manner in which this investigation should take place, but the more serious the events that call for inquiry, the more intensive should be the process of public scrutiny. In such cases the families of the deceased should be involved in the procedure to the extent that is necessary to safeguard their interests.’
The inquest might not be sufficiently wide ranging to satisfy the right, and the respondent should take an opportunity to reconsider his decision not to provide assistance: ‘The procedural obligation introduced by article 2 has three interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public.’
‘the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented’

Judges:

Brooke VP, Waller, Clarke LJJ

Citations:

[2004] 1 WLR 971, [2003] EWCA Civ 1129, Times 15-Oct-2003, Gazette 20-Nov-2003, [2003] Inquest LR 70, [2003] 3 FCR 341, (2004) 76 BMLR 118, [2003] ACD 89, (2004) 7 CCL Rep 361, [2003] 4 All ER 1239, [2004] Lloyd’s Rep Med 159

Links:

Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

England and Wales

Citing:

Cited – Powell v United Kingdom ECHR 4-May-2000
A ten-year old boy had died from Addison’s disease. No inquest took place, because the coroner decided that the boy had died of natural causes. The parents, who were also affected by the events, had accepted compensation from the local health . .
Cited – Regina (Amin) v Secretary of State for the Home Department; Regina (Middleton) v Coroner for West Somersetshire CA 27-Mar-2002
A prisoner had been killed in his cell by a cell-mate known to be unstable and racist. His family sought to be involved in the inquiry into the death within the prison system. A second prisoner hanged himself in his cell. His family alleged that he . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Sieminska v Poland ECHR 29-Mar-2001
The applicant’s husband died in hospital, but she later complained that the ambulance had not been equipped with the necessary resuscitation devices. Under Polish law she had a right to appeal against decisions of the prosecuting authorities not to . .
Cited – Calvelli and Ciglio v Italy ECHR 17-Jan-2002
The applicants’ baby had died shortly after birth in 1987. They complained about the medical care. The complaint was not investigated speedily by the authority, resulting in a criminal complaint becoming time barred after a conviction in 1994 was . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Oneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: The . .
Cited – Mastromatteo v Italy ECHR 24-Oct-2002
The deceased had been a bystander killed by a group of criminals, some of whom were on leave of absence from prison and one of whom had absconded from prison. A complaint was made by the applicant that there had been a breach of the positive duty to . .
Cited – Hurst v Coroner Northern District of London Admn 4-Jul-2003
The deceased was killed by Mr Reid, a neighbour, who was convicted of his manslaughter.
Held: The court quashed the coroner’s refusal to accede to the application of the deceased’s father to resume an adjourned inquest into the death, at which . .
Cited – Sacker v HM Coroner for the County of West Yorkshire CA 27-Feb-2003
The court expressed scepticism about the suitability of a coroner’s inquest, in its present form, as a vehicle for carrying out a state’s obligations under Article 2. Those considerations may accentuate the need for an overdue improvement in the . .
Cited – Regina v Secretary of State for Health, Ex Parte Wagstaff etc QBD 31-Aug-2000
The Secretary of State announced a public enquiry into the Shipman case. He did not say whether it would be a public enquiry. The bereaved families and media wanted it to be public, and contended that it had been invalidly constituted, that an . .
Cited – Credit Suisse and Another v Waltham Forest London Borough Council CA 20-May-1996
Parliament had made detailed provision in a number of Acts for the discharge of the housing duties by local authorities. These detailed provisions did not contain a power to give a guarantee in connection with a bank loan to a company which the . .
Appeal from – Khan, Regina (on the Application Of) v Secretary of State for Health Admn 17-Jun-2003
. .

Cited by:

Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Plymouth City Council v HM Coroner for the County of Devon and Another Admn 27-May-2005
The local authority in whose care the deceased child had been held challenged a decision by the coroner not to limit his inquiry to the last few days of the child’s life. The coroner had decided that he had an obligation to conduct a wider enquiry . .
Cited – Letts, Regina (on The Application of) v The Lord Chancellor and Another Admn 20-Feb-2015
Application for judicial review concerning the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Legal Aid, Coroners

Updated: 08 June 2022; Ref: scu.186692

Fowler De Pledge (A Firm) v Smith: CA 20 May 2003

The appellant sought two permissions to appeal. Having at one stage been legally aided in proceedings, a claim for his solicitors costs had been compromised. The court records were imperfect. It was not clear whether a circuit judge sitting as a first appeal court had directed that a matter should be heard by another circuit judge as an appeal by way of rehearing, or as a rehearing of the original application.
Held: Courts must be careful to be clear as to just what was being ordered. There was no evidence to justify a finding that Mr Smith had sufficient means to pay the full amount of the costs order against him, whether by consent or not.

Judges:

Lord Justice Schiemann, Lord Justice Brooke and Lord Justice Jonathan Parker

Citations:

[2003] EWCA Civ 703, Times 27-May-2003, Gazette 31-Jul-2003

Links:

Bailii

Statutes:

Legal Aid Act 1988 17

Jurisdiction:

England and Wales

Citing:

Cited – Chaggar v Chaggar CA 1997
When considering making an order that an assisted person make a contribution to costs, the task of the court is set out in s 17: it is to decide the assisted parties’ liability for costs. Those costs must not exceed that which it is reasonable for . .
Cited – Crystall v Crystall CA 1963
When considering an order that a legally aided party should pay all or part of any costs, one of the circumstances, and a compelling circumstance, is the means of the party himself. Whatever one may think of the conduct of a party it would still not . .
Cited – Gooday v Gooday CA 1968
The court considered whether it was appropriate to order a contribution to costs from a legally aided party.
Held: Although the judge was correct that the wife should not have persisted in bringing a hopeless case against the husband, the 1949 . .

Cited by:

Cited – Southern and District Finance Plc v Turner CA 7-Nov-2003
The defendant sought to assert that the agreement under which possession of her house was sought was an extortionate credit bargain. She had to obtain leave to appeal out of time.
Held: The rules required an application to be supported by . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Aid

Updated: 07 June 2022; Ref: scu.182342

A v The United Kingdom: ECHR 17 Dec 2002

The applicant complained that the absence of legal aid to allow a challenge what had been said about her in Parliament by way of defamation, violated her right of access to court.
Held: The right to absolute parliamentary privilege was within the margin of freedom enjoyed by a nation state. The applicant was not left entirely without remedy, and the freedom of parliament was properly to be protected. As to the availability of legal aid, limited legal advice was available, and a conditional fee arrangement might also have been available. ‘However, the right of access to court is not absolute, but may be subject to limitations. These are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved.’

Citations:

Times 28-Dec-2002, 35373/97, [2002] ECHR 805, (2002) 36 EHRR 917, [2002] ECHR 811

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 6 8.1

Cited by:

Cited – Gray v Avadis QBD 30-Jul-2003
The claimant had made complaints against the defendant solicitor to the Office for the Supervision of Solicitors. In answer the defendant made assertions about the claimant’s mental health, and she now sought to bring action iin defamation on those . .
Cited – Polanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
Cited – Westcott v Westcott CA 15-Jul-2008
The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
Cited – Goodwin v NGN Ltd and VBN QBD 9-Jun-2011
The claimant had obtained an injunction preventing publication of his name and that of his coworker with whom he had had an affair. After widespread publication of his name elsewhere, the defendant had secured the discharge of the order as regards . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Legal Aid, Constitutional

Updated: 06 June 2022; Ref: scu.178596

Regina (Augustine Machi) v Legal Services Commission: CA 20 Dec 2001

The applicant was legally aided under a full certificate. He wished to continue an action despite his solicitors and counsel advising him to accept a settlement offered. The Respondent wished to consider revocation of the certificate, and instructed the solicitors to cease work until a decision had been made. This was a day or so before the trial was listed.
Held: The Commission had no power to make such a request in this way. They had acted in a procedurally unfair way to the applicant.

Judges:

Lord Justice Simon Brown, Lord Justice Waller and Lord Justice Sedley

Citations:

Times 15-Jan-2002, Gazette 27-Feb-2002, [2001] EWCA Civ 2010, [2002] 1 WLR 983

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations 1989 (SI 1989 No 339), Legal Aid Act 1988 4

Jurisdiction:

England and Wales

Administrative, Legal Aid

Updated: 05 June 2022; Ref: scu.167405

Richard Hinds v The Attorney General and The Superintendent of Glendairy Prison: PC 5 Dec 2001

(Barbados) The appellant argued that the denial of free legal representation at his trial infringed his constitutional rights. He had been faced with a charge of arson, but was told the complexity of the case did not require legal assistance. The trial involved issues as to his competence and the admissibility of his confession. The constitution gave him the right to a fair trial, but provided no right to free legal representation. A scheme had been introduced later.
Held: The constitution must be seen as a living document. Barbados, had, in ratifying international conventions explicitly withheld the right to free representation. The right to a fair trial was not however qualified. Breach of a defendant’s constitutional right to a fair trial must result in the conviction being quashed. The provision of a right of appeal did not in this case correct the judge’s failure to consider his individual circumstances properly. However a claim for constitutional relief is not an alternative means of challenging a conviction or a judicial decision, nor an additional means where such a challenge, based on constitutional grounds, has been made and rejected. Appeal dismissed.

Judges:

Lord Bingham of Cornhill Lord Hobhouse of Woodborough Lord Scott of Foscote Sir Murray Stuart-Smith Sir KennethKeith

Citations:

Appeal No 28 0f 2000, [2001] UKPC 56

Links:

PC, PC, Bailii

Citing:

Cited – Mohammed (Allie) v The State PC 9-Dec-1998
(Trinidad and Tobago) A failure to inform a suspect before interview of his right to see a lawyer did not make the interview inadmissible despite the constitutional infringement. It was not as serious as a failure to give fair trial. The judge’s . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Constitutional

Updated: 05 June 2022; Ref: scu.167071

Regina v Legal Aid Board No 15 Area (Merseyside), Ex Parte European Community: QBD 6 May 1998

LAB had the power to give prior authorisation to allow payment of travel expenses of assisted person to visit expert to assist in preparation of expert report where assisted person unable to afford travel.

Citations:

Times 06-May-1998

Statutes:

Civil Legal Aid (General) Regulations 1989 (SI 1989 No 339)

Jurisdiction:

England and Wales

Legal Aid

Updated: 05 June 2022; Ref: scu.88530

Microsoft Corporation v Backslash Distribution Ltd et Al: ChD 15 Mar 1999

Legal Aid Regulations providing that a legally aided defendant could in some circumstances be ordered to pay the costs of a prosecution after a contempt and on an indemnity basis were not invalid. An award of a gross sum in lieu of part costs was not proper.

Citations:

Times 15-Mar-1999

Statutes:

Civil Legal Aid (General) Regulations 1989 103 24

Jurisdiction:

England and Wales

Legal Aid

Updated: 05 June 2022; Ref: scu.83692

Edwards, Regina (on the Application Of) v Environment Agency and Another: Admn 2 Apr 2004

The claimant challenged the granting of permission to a cement factory to change its energy systems to be operated by the burning of waste tyres. The respondent was concerned as to the standing of the claimant. He was impecunious, but associated with a woman who was a leading light in the campaign and relatively well off.
Held: ‘Mr Edwards has a sufficient interest in the decision to issue the Permit even if he is temporarily homeless, because as an inhabitant of Rugby he will be affected by any adverse impact on the environment which the trials on the use of tyre chips may have.’

Judges:

Keith J

Citations:

[2004] EWHC 736 (Admin)

Links:

Bailii

Statutes:

Pollution Prevention and Control (England and Wales) Regulations 2000, Supreme Court Act 1981 31(3)

Jurisdiction:

England and Wales

Cited by:

At First Instance – Edwards and Another, Regina (on The Application of) v Environment Agency and Others (No 2) SC 11-Dec-2013
The court considered the consequences of a finding that the UK was in breach of the Aarhus Convention, as regards the ‘prohibitively expensive’ cost of proceedings. The Agency had given permission for the change of fuel for a cement works to . .
Lists of cited by and citing cases may be incomplete.

Environment, Judicial Review, Legal Aid

Updated: 04 June 2022; Ref: scu.198212

A Local Authority v A Mother and Child: CA 20 Dec 2000

A solicitor claimed the sum of andpound;59.00 for the cost of preparing his legal aid bill for assessment. The court had disallowed the costs of an in-house costs draftsman preparing the bill. The Costs Procedure Rules would generally allow something toward such a charge. The Court of Appeal had given leave to appeal although the amount at issue in this case was less than ten pounds.
Held: The Act specified what sums could be paid from the legal aid fund. The rules made under the Act specified a sum of andpound;71.75 toward the cost. Historically the preparation of a bill is seen as part of a solicitors overheads, and thus not claimable. This changed under the Civil Procedure Rules, and the solicitor argued that the Rules over-rode the Regulations so as to remove the limitation. However there is no new additional category by which changes under the rules have become vires. The Civil Procedure Rules go through no process of democratic control. The Rules have no power to override either legislation or subordinate legislation.

Judges:

The President. Lord Justice Laws, And Lady Justice Hale

Citations:

[2000] EWCA Civ 339

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations 1989 (SI 1989 No 339) 107, Legal Aid Act 1988 6(1), Civil Procedure Rules 2.16

Jurisdiction:

England and Wales

Citing:

Cited – Johnson v Reed Corrugated Cases Ltd 1992
The costs principles set out in the Masters’ Practice Notes and which endorsed the dual approach of assessing and adding an element to reflect the value at stake in litigation as well as the hourly expense rate of providing that service in all . .
Lists of cited by and citing cases may be incomplete.

Costs, Family, Legal Aid, Constitutional, Civil Procedure Rules

Updated: 31 May 2022; Ref: scu.147372

Regina v Area Director of Legal Aid Board ex parte Edwin Coe (a Firm) and Another: CA 17 May 2000

The Legal Aid Board having issued an amendment to an authority under a certificate to reflect the application made, but where the certificate failed to reflect the intended scope of the authority, the Board could later amend the certificate to cover the work undertaken, particularly where the certificate, as here, contained a manifest error.

Citations:

Times 26-May-2000, Gazette 22-Jun-2000, [2000] EWCA Civ 157

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations 1989 (1989 No 399) 51(a)

Jurisdiction:

England and Wales

Legal Aid

Updated: 31 May 2022; Ref: scu.147190

Burridge; Allen v Stafford and Stafford: CA 28 Jul 1999

The Act and Regulations prescribe different tests for when someone is deemed to cease to be legally assisted. The two are trying to do slightly different things, and the Regulations are not intended to over-rule the Act. The Act prevails, and the time is fixed not by the discharge of the certificate, nor by the date on the court record, but rather the date he actually started to act in person.

Citations:

Times 14-Sep-1999, Gazette 29-Sep-1999, [1999] EWCA Civ 1995

Links:

Bailii

Statutes:

Legal Aid Act 1988 2 17 1, Civil Legal Aid (General) Regulations 1989 (1989 No 399)

Jurisdiction:

England and Wales

Legal Aid

Updated: 31 May 2022; Ref: scu.146910

Mcgladdery v Mcgladdery: CA 21 Jul 1999

Citations:

[1999] EWCA Civ 1909

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Mcgladdery v Mcgladdery CA 26-Sep-1996
Implementation of ancillary relief order for transfer of shares in family company. . .
See also – McGladdery v McGladdery CA 21-Jul-1999
A husband having been ordered to transfer his shares in a private company to his wife, found that she had breached the undertaking she had given as part of the order, and had used her majority shareholding to dispose of company assets out of the . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 31 May 2022; Ref: scu.146824

Goulden v Wilson Barca: CA 14 Jul 1999

Obligations under contract between a solicitor and an expert witness to appear in a legally aided case were not limited by Legal Aid Regulations, and a solicitor agreeing to pay a witness’s fees for attending as a witness was bound to pay them. The contract was not void for illegality, despite the statutory arrangements for payment for such attendances out of central funds.

Citations:

Times 20-Aug-1999, Gazette 11-Aug-1999, Gazette 13-Oct-1999, [1999] EWCA Civ 1828, [1999] EWCA Civ 1837

Links:

Bailii, Bailii

Statutes:

Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 (1989 No 344) 55

Jurisdiction:

England and Wales

Legal Professions, Legal Aid

Updated: 31 May 2022; Ref: scu.146743

Legal Aid Area No 1 (London) Appeal Committee v ex parte Mccormick: Admn 26 May 2000

An assisted person had had his legal aid certificate revoked after failing to disclose to the Legal Aid Board a change in his circumstances. The test of whether a change was material and so should be disclosed was an objective test as to whether the assisted person had reason to believe it might affect his eligibility. The Board should consider more carefully the circumstances of each case to decide whether to revoke or only discharge a certificate.

Citations:

Gazette 22-Jun-2000, Times 13-Jun-2000, [2000] EWHC Admin 351, [2000] 1 WLR 1804

Links:

Bailii

Cited by:

Applied – Regina (Bateman and Bateman) v Legal Services Commission Admn 10-Sep-2001
The applicants sought a judicial review after their legal aid certificates were revoked for non-disclosure of various financial receipts. A financial statement prepared on their behalf had suggested substantial capital assets. The relationship . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 29 May 2022; Ref: scu.140166

P, Regina v: Misc 18 Mar 2008

Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings.

Judges:

Mole QC HHJ

Citations:

[2008] EW Misc 2 (EWCC)

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002

Jurisdiction:

England and Wales

Citing:

Cited – McLean and Another v Buchanan, Procurator Fiscal and Another PC 24-May-2001
(Appeal from High Court of Justiciary (Scotland)) It was not an infringement of a defendant’s right to a fair trial where the costs of defending the case brought against him would be substantial, but where his solicitors would be paid only a small . .
Cited – Regina v Rowbotham and others 1988
Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied . .
Cited – Regina v Dadshani 8-Feb-2008
Ontario – Superior Court of Justice – proceeding in the nature of a Rowbotham or Fisher application to secure state funding for the defences of the accused who are facing charges of first degree murder. . .

Cited by:

Cited – Brownlee, Re Judicial Review QBNI 20-Mar-2013
The applicant, a convicted prisoner sought a declaration that the respondent’s decision to make no provision for exceptional circumstances in the payment of fees under the 2011 Amendment Rules is unlawful and a declaration that the said Rules . .
Cited – In re Brownlee for Judicial Review SC 29-Jan-2014
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Aid

Updated: 28 May 2022; Ref: scu.406761

Rrapaj and Others v Director of Legal Aid Casework and Another: Admn 2 Jul 2013

The several claimants had applied for legal aid to resist removal proceedings, and now challenged the application of the 2012 in the decisions refusing their applications.

Judges:

Ouseley J

Citations:

[2013] EWHC 1837 (Admin)

Links:

Bailii

Statutes:

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Jurisdiction:

England and Wales

Legal Aid

Updated: 28 May 2022; Ref: scu.512135

Legal Services Commission v Rasool: CA 5 Mar 2008

The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that time did not run until the sum was fixed.
Held: The Commission’s appeal failed: ‘the fact that declaratory relief is available demonstrates to me that the process of ascertainment of the amount of costs is a mere procedural requirement, not an inherent element of the cause of action itself . . time runs from the date of the completion of work not from the date of taxation. I can see no reason why a similar rule should not apply by way of analogy so that the only facts to be proved to establish cause of action under regulation 86(1) are that work had been done under a certificate but that the certificate had been revoked. Taxation should not be the crystallising event in either case.’

Judges:

Lord Justice Ward, Lady Justice Smith and Lord Justice Wilson

Citations:

[2008] EWCA Civ 154, Times 21-Apr-2008, [2008] 3 All ER 381, [2008] 4 Costs LR 529, [2008] 1 WLR 2711, (2008) 158 NLJ 414

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations (SI 1989 No 339), Limitation Act 1980 9

Jurisdiction:

England and Wales

Citing:

Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Cited – Central Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
Cited – London Borough of Hillingdon v ARC Limited (No 2) CA 16-Jun-2000
The council entered upon land belonging to the company in accordance with the compulsory purchase procedures in 1982, but the company did not bring its claim for compensation until 1992. The council said the were out of time.
Held: Section 9 . .
Cited – Sevcon Ltd v Lucas CAV Ltd HL 1986
A claim was brought for the infringement of a patent. It was brought after the specification had been published, but before the patent had been sealed.
Held: Time might run from a date before the plaintiff was entitled to sue. The cause of . .

Cited by:

Cited – Legal Services Commission v Henthorn QBD 4-Feb-2011
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
Cited – Legal Services Commission v Henthorn CA 30-Nov-2011
The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Limitation

Updated: 27 May 2022; Ref: scu.266089

Legal Services Commission v Henthorn: CA 30 Nov 2011

The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal succeeded. In general, time would run from the earlier date: ‘Save where it is the essence of the arrangement between the parties that a sum is not payable until demanded (e.g. a loan expressly or impliedly repayable on demand), it appears to me that clear words would normally be required before a contract should be held to give a potential or actual creditor complete control over when time starts running against him, as it is such an unlikely arrangement for an actual or potential debtor to have agreed.’, but in this context, ‘time did not begin to run against the Commission in respect of claims falling within regulation 100(8) until the assessment there referred to had taken place.’
Lord Neuberger MR said: ‘A person who wished to obtain legal representation had to be granted a legal aid certificate (‘a certificate’) and, once it was granted, he or she became an ‘assisted person’. An assisted person was, at least in principle, free to choose a solicitor, who was to be subject to the same obligations to the assisted client as would have applied had the instructions been private save for any specific exception provided for by the statutory scheme – see section 32 of the 1988 Act. One way in which the contractual relationship between solicitor and client was altered by the grant of legal aid was under section 9(5) of the 1988 Act, which provided that the assisted person was not required to pay his or her solicitor any charge or fee, save for any contribution provided for in the Regulations. Similarly, under section 31(3), the solicitor was not entitled to take any payment in respect of that representation other than as paid by the Commission or as authorised by the 1988 Act or by the Regulations. . .
The Commission could, and usually did, impose conditions limiting the ambit of the certificate and requiring further approval before any limitation could be amended. Costs incurred by an assisted person’s legal representatives in those cases could only be paid for out of the Legal Aid Fund (‘the fund’) if they had been incurred during the currency of a valid certificate.’

Judges:

Neuberger MR, Lewison LJJ, Sir Stephen Sedley

Citations:

[2011] EWCA Civ 1415, [2011] NPC 123, [2012] 1 Costs LR 169, [2012] 2 All ER 439, [2012] 1 WLR 1173

Links:

Bailii

Statutes:

Legal Aid Act 1988, Civil Legal Aid (General) Regulations 1989

Jurisdiction:

England and Wales

Citing:

Cited – Blake v The United Kingdom ECHR 26-Sep-2006
The claimant had been a Russian spy whilst in British Intelligence, escaping from prison and fleeing to Russia in 1966. He now complained that an action by the respondent government to seek to recover royalties from a book had been so extended in . .
Appeal from – Legal Services Commission v Henthorn QBD 4-Feb-2011
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
Cited – Central Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
Cited – Swansea City Council v Glass CA 1992
The defendant had failed himself to repair his property, and the Local Authority carried out the work itself under the 1957 Act. It sought to recover the associated costs from the defendant, but he said that their claim was time barred, being more . .
Cited – Legal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Lists of cited by and citing cases may be incomplete.

Limitation, Legal Aid

Updated: 27 May 2022; Ref: scu.449043

B and Another, Regina (on the Application of) v Leeds School Organisation Committee: QBD 13 Sep 2002

The applicants sought through their litigation friends to oppose the decision of the respondent to close their junior school. The respondent said the proceedings were an abuse, having been brought in the children’s names solely to obtain legal aid.
Held: The Richmond case said that such applications should be made by the parent, not the child, save exceptionally. An application on the basis that the proceedings were an abuse having been brought in the child’s name solely in order to obtain public funding of the case would require clear evidence, and no such evidence existed here.

Judges:

Scott Baker J

Citations:

Times 22-Oct-2002

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Richmond Upon Thames London Borough Council and Another, Ex Parte JC (A Child) CA 10-Aug-2000
The restrictions placed upon the maximum class sizes in turn restricted the rights of parents to appeal against refusal of a school place. It is for the parent to satisfy the original admissions committee and the appeal committee of the need for a . .
Lists of cited by and citing cases may be incomplete.

Education, Local Government, Legal Aid

Updated: 26 May 2022; Ref: scu.177480

Regina v Legal Aid Board ex parte T, a Firm of Solicitors: Admn 25 Jun 1997

The firm of solicitors making an application for judicial review of the decision of the Board to institute criminal proceedings against them sought anonymity, saying that procedure which might prove them innocent would nevertheless damage their practice.
Held: The overriding principle was for openness of proceedings.

Citations:

[1997] EWHC Admin 593

Links:

Bailii

Citing:

See also – Regina v Legal Aid Board ex parte T, a Firm of Solicitors Admn 25-Jun-1997
Application for judicial review of decision of Legal Aid board – granted. . .
Cited – Regina v London Borough of Camden ex parte Margarita Martin Admn 25-Oct-1996
The court has no power to make a wasted costs order in favour of a party opposing an ex parte application. . .
Cited – Regina v Westminster City Council Ex Parte Castelli QBD 14-Aug-1995
An applicant, who was HIV positive, wished his identity to be concealed.
Held: Some publicity had already occurred A Contempt of Court anonymity order was not to be used to protect a litigant’s privacy. . .

Cited by:

See also – Regina v Legal Aid Board ex parte T, a Firm of Solicitors Admn 25-Jun-1997
Application for judicial review of decision of Legal Aid board – granted. . .
Appeal from – Regina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Legal Professions

Updated: 26 May 2022; Ref: scu.137538

Regina v Gravesend Magistrates Court ex parte Baker: Admn 16 Apr 1997

The defendant appealed a refusal of legal aid. She wished to establish that her drink had been spiked, and thus to establish special reasons for not being disqualified for driving with excess alcohol.
Held: Expert evidence would assist the magistrates in deciding the matter. That would not be available without expert evidence, and therefore legal aid was necessary.

Judges:

Lord Justice Mccowan -And- Mr Justice Popplewell

Citations:

[1997] EWHC Admin 373

Links:

Bailii

Citing:

Cited – Director of Public Prosecutions v O’Connor and Chapman and Others 1991
The court looked at the elements needed to be established to support a defence to a charge of driving with excess alcohol on the basis that the defendant’s drinks had been spiked: ‘On the authorities, it is now clearly established that the matters . .
Cited – Director of Public Prosecutions v Vincent QBD 1992
(Year?) ‘From the authorities the following principles can be established. Firstly, it is for the defendant on the balance of probability to establish that his drink had been laced unknown to him. Secondly, it is very rarely that a court will be . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Magistrates, Legal Aid

Updated: 25 May 2022; Ref: scu.137318

Regina (Gunn) v Secretary of State for the Home Department Regina (Kelly) v Same Regina (Zahid Khan) v Same: CA 14 Jun 2001

The new Regulations and court rules expressly reserved to a costs judge the decision about whether a costs order should be made against the Legal Services Commission. The former practice of the trial judge making this decision must no longer apply. The new rules did not operate to remove the power of the court to make similar costs orders in favour of public bodies. The test of whether such an order should be made remained whether it was just and equitable to do so. The court summarised the Cost Protection Regulations.
Lord Phillips MR said: ‘The new regulations introduce a two-stage process in relation to the recovery of costs in cases to which s 11(1) of the 1999 Act applies. The procedure to be followed is primarily to be derived from the costs regulations. The scheme is as follows.
Stage 1
The first stage involves the court dealing with the substance of the dispute, which we shall call the trial court. The role of the trial court is as follows. (i) To decide whether to make an order for costs against a funded litigant (the client) (reg 9(1)). (ii) To decide whether it is in a position to specify the amount, if any, to be paid by the client (reg 9(2)). (iii) To make a costs order against the client which either (a) specifies the amount, if any, to be paid by the client and states the amount of the full costs, or (b) does not specify the amount to be paid by the client (reg 9(3) and (4)). The order is described in the regulations as a s 11(1) costs order and is defined in both sets of regulations as a ‘costs order against a client where cost protection applies’. ‘Cost protection’ means ‘the limit set on costs awarded against a client set out in s 11(1) of the Act’. (iv) Where the order does not specify the amount to be paid by the client, to make, if it sees fit, findings of fact, as to the parties’ conduct in the proceedings or otherwise, relevant to the determination of the amount (reg 9(6)).
Stage 2
Stage 2 consists of the procedure to be followed to ascertain the amount of costs to be paid by the client against whom the trial court has made an order that does not specify the amount. Stage 2 also includes the procedure for determining whether an order for costs should be made against the Commission (reg 9(5)). The regulations in relation to Stage 2 allocate certain functions to ‘the Court’. Regulation 10(10) provides that in relation to proceedings in the Court of Appeal, High Court or county court the court’s functions ‘may be exercised’ by a costs judge or a district judge. While it is arguable that the High Court and the Court of Appeal also enjoy jurisdiction to exercise these functions, we think it plain that the scheme does not envisage that they should do so.
Regulation 2 provides that ‘Costs Judge’ has the same meaning as in the CPR. CPR 43.2(1)(b) provides that ‘Costs Judge’ means a taxing master of the Supreme Court.
The procedure under Stage 2 is as follows. (i) The party in whose favour the costs order has been made (the receiving party) may, within three months of the making of the costs order, request a hearing to determine the costs payable to him (reg 10(2)). (ii) The receiving party may, at the same time, seek a costs order against the Commission. (reg 10(3)(c)). We wish to take this opportunity to emphasise a fact that we understand is not generally appreciated. The three-month time limit for seeking an order against the Commission is mandatory-there is no power to extend it. (iii) The receiving party must, when making the request, file with the court and serve on the client and the regional director of the Commission (if an order is sought against the Commission): (a) a bill of costs; (b) a statement of resources; and (c) a written notice that a costs order is sought against the Commission (reg 10(3) and (4)). (iv) The client must file a statement of resources and serve this on the receiving party and the regional director (where a claim is made on the Commission) (reg 10(6)). (v) The court sets a date for the hearing (reg 10(9)). (vi) The court conducts the hearing, assesses the costs (if any) to be paid by the client and, where appropriate, makes a costs order against the Commission.
The costs regulations do not, in fact, expressly provide that the costs judge shall carry out the functions set out under (vi) above, but it is plainly implicit that he should. That this is part of his role is confirmed by the explicit provisions of the cost protection regulations.
The cost protection regulations set out the circumstances in which the costs judge or district judge may make a costs order against the Commission. Regulation 5(3) makes it plain that it is for the costs judge or district judge to be satisfied that it is just and equitable that provision for the costs should be made out of public funds and, in respect of proceedings at first instance, that the non-funded party will suffer severe financial hardship unless the order is made. In considering these matters the costs judge or district judge is expressly required to have regard to the resources of the non-funded party and of his partner – reg 5(6).
We have set out the new regulatory scheme in detail because we have concluded that it is not compatible with the current practices of the trial court. The function of deciding whether or not a costs order can and should be made against the Commission is now expressly assigned to the costs judge or district judge. He cannot make such an order unless and until the prescribed formalities have been completed. It is not open to the trial court to rule that it is just and equitable to make the order or to direct that the order is to be made before the prescribed formalities have been completed. Regulation 9(6) of the costs regulations permits the trial court, when making a costs order, to make findings of fact relevant to the determination of the amount to be paid by the client. We consider that it must also be open to the trial court to make any findings in relation to the conduct of the parties or facts that have emerged in the course of the proceedings that have relevance to the task to be performed by the costs judge or district judge. Beyond this the trial court should not go. It follows that, in the cases before us, this court should not have usurped the function of the costs judge-in these cases the taxing master-in deciding that it was just and equitable to make a costs order against the Commission and to direct that such an order be made. This practice must no longer be followed, whether in the county court, the High Court or the Court of Appeal.

Judges:

Lord Phillips MR, Pill and Keene LJJ

Citations:

Times 20-Jun-2001, Gazette 05-Jul-2001, [2001] EWCA Civ 891, [2001] 1 WLR 1634, [2001] CP Rep 107, [2001] 3 All ER 481, [2001] 2 Costs LR 263

Links:

Bailii

Statutes:

Community Legal Services (Costs) Regulations 2000 (SI 2000 No 441)

Jurisdiction:

England and Wales

Citing:

See Also – Regina v Home Secretary ex parte Gunn CA 2000
A challenge under article 5 to decisions about a prisoner’s treatment were misconceived in the context of the Secretary of State’s refusal to transfer a prisoner to open conditions with a view to improving his prospects of release: ‘[Article 5(4)] . .

Cited by:

Cited – D and D W v Portsmouth Hospital NHS; in re W (A Child) CA 3-May-2006
The claimants had sought court orders against the hospital to secure continuing life-supporting treatment for their daughter who had been born very severely disabled. The Trust now sought their costs from the various actions.
Held: The parents . .
Cited – Floyd and Another v Legal Services Commission QBD 28-Apr-2010
The claimant had succeeded in an action against her legally aided opponent, but then delayed in making her claim for costs against the respondent. The costs judge said that the CPR did not apply, and that he had no discretion to extend the time . .
Cited – Leeds City Council v Price and Others QBD 4-Apr-2011
The council had successfully defended a case brought by the defendant under legal aid. The parties now disputed whether it could recover the costs from the Legal Service Commission. The LSC answered that it had not been given proper notice of the . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 25 May 2022; Ref: scu.136149

Toth, Regina (on the Application of) v Legal Services Commission: Admn 17 Jan 2002

The applicant sought a judicial review of the Commission’s refusal of his appeal against the refusal to remove a restriction on his legal aid certificate. The request had been refused on the merits after applying a cost benefit analysis, and he challenged the fairness of the procedure adopted on his appeal. He said that a substantial part of the costs already incurred had been so incurred because of the failings of his first solicitors.
Held: The Commission had assessed the likely cost of the case, and made a decision within their discretion. At the appeal hearing he had not been given warning of the nature of the questions he would be asked to answer. The court held he could be expected to have provided all the information in his possession, and the procedure had not been unfair. The cost/benefit test was not ultra vires, and the application failed.

Judges:

Mr Justice Hooper

Citations:

[2002] EWHC 5 (Admin)

Links:

Bailii

Statutes:

Legal Aid Act 1988 15(3)(a)

Jurisdiction:

England and Wales

Legal Aid

Updated: 23 May 2022; Ref: scu.168019

Regina v Legal Aid Board No 15 Area (Merseyside) ex parte Stephen Richard Paul Eccleston: Admn 3 Apr 1998

An assisted person who needed funds in order to travel to a medical examination should have his expenses re-imbursed by the Legal Aid Board. What was recoverable on taxation inter partes was not the correct test and did not follow the Regulation wording.

Citations:

Gazette 07-Oct-1998, [1998] 1 WLR 1279, [1998] EWHC Admin 396

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations 1989

Jurisdiction:

England and Wales

Legal Aid

Updated: 22 May 2022; Ref: scu.138517

Stein v Blake: ChD 31 Oct 2000

When a Legal Aid certificate was withdrawn, leading to an opposing party suffering abortive costs in continuing the action, it was not a duty of the Legal Services Commission to inform the opposing side. They would have no access to arrangements made by the formerly assisted person for continuing the action or otherwise, and the duty must fall on the solicitor appointed to act.

Citations:

Times 31-Oct-2000, Gazette 09-Nov-2000

Jurisdiction:

England and Wales

Citing:

See Also – Stein v Blake CA 13-May-1993
The plaintiff argued that: ‘Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off.’
Held: The decision . .
See Also – Stein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .
See Also – Stein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Legal Professions

Updated: 20 May 2022; Ref: scu.89540

Stacey v Player and Another: ChD 23 Feb 2001

A party was legally aided in proceedings. A third party offered to pay his costs in interlocutory proceedings. He was successful, and the losing party appealed an order to pay his costs. He succeeded. Whilst he was legally aided, his solicitors could only receive payment from the Legal Services Commission, and the fact that someone else might have paid did not allow an order against the third party. Such an order would leave the solicitors receiving payment other than from the LSC.

Citations:

Gazette 08-Mar-2001, Times 23-Feb-2001

Statutes:

Civil Legal Aid (General) Regulations 1989 64

Jurisdiction:

England and Wales

Costs, Legal Aid

Updated: 20 May 2022; Ref: scu.89479

Sheffield City Council v V; Legal Services Commission intervening: FD 23 Jun 2006

The court set out the criteria to be used when ordering payment by the council of the costs of a residential assessment ordered during care proceedings.

Citations:

Times 25-Aug-2006

Statutes:

Children Act 1989 38(6)

Jurisdiction:

England and Wales

Children, Local Government, Legal Aid

Updated: 20 May 2022; Ref: scu.244693

Arbitrators’ Institute of New Zealand Inc v Legal Services Board: 1995

(New Zealand) A dispute had been referred to arbitration, and the question was whether a private arbitrator was a ‘judicial authority’.
Held: In their natural and ordinary meaning those words referred to a person or body: ‘ . . having power to judge a matter before it, which power is derived from the state.’ After a lengthy examination of the statutory context and its legislative history, the judge concluded that a private arbitrator, whose authority derived from the consent of the parties and not from the state, was not a ‘judicial authority’ within the meaning of the subparagraph.

Citations:

[1995] 2 NZLR 202

Jurisdiction:

England and Wales

Cited by:

Cited – Pauline Eunice Tangiora v Wellington District Legal Services Committee PC 4-Oct-1999
PC (New Zealand) The appellants claimed that their treatment by the respondent infringed their human rights as guaranteed by the respondents signing the Convenant. They wanted to apply to the International . .
Lists of cited by and citing cases may be incomplete.

Legal Aid

Updated: 19 May 2022; Ref: scu.199553

Regina v Chester and North Wales Legal Aid Area Office Ex Parte Floods of Queensbury Ltd: QBD 7 Nov 1997

It was possible for a body to apply for legal aid but only if it was genuinely acting in a fiduciary capacity as trustee, not mere contractual representative.

Citations:

Times 07-Nov-1997, [1997] EWHC Admin 883

Links:

Bailii

Statutes:

Legal Aid Act 1974 2(10), Legal Aid Act 1988 2(10)

Cited by:

Appeal from – Regina v Chester and North Wales Legal Aid Area Office (No 12) ex parte Floods of Queensferry Limited CA 18-Dec-1997
A company was not entitled to legal aid unless it was clearly acting in a fiduciary capacity; that the assignment of an action is invalid is insufficient to warrant a grant. . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Company

Updated: 19 May 2022; Ref: scu.86343