The effect of revocation of a party’s emergency civil legal aid certificate was that he was to be deemed never to have been an assisted person. Accordingly where two costs orders had been made in interlocutory proceedings, and the defendant had been protected from an order for costs because of the legal aid certificate, it was open to a judge to revisit those costs orders after revocation and to consider substituting orders which could not have been made when he was legally aided. The provisions in this case survived some of the repeals under the new legislation.

Citations:

Times 20-Feb-2001, Gazette 01-Mar-2001, [2001] EWCA Civ 1228

Links:

Bailii

Statutes:

Legal Aid Act 1988, Access to Justice Act 1999, Civil Legal Aid (General) Regulations 1989

Jurisdiction:

England and Wales

Cited by:

Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 19 May 2022; Ref: scu.79885

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 defendants’, ‘not to be enforced without leave of the court save by way of set-off as against damages and/or costs’.
Held: The plaintiff’s appeal on the costs order failed. ‘The issue in this appeal is whether, in a case where one party is legally aided, an order for costs in favour of the other party can direct that those costs be set-off against either damages or costs to which the legally aided party has become, or may in future become, entitled in the action.’
The court confirmed the right of a party to set off a costs award against a subsequent damages or costs award in favour of an assisted person. Section 16(8) simply preserved those rights of set-off that the general law would allow and protected them against the charge created by section 16(6). It did not create any new right of set-off. Its effect was to make it clear that whatever rights of set-off were available under the general law were available against legally aided parties notwithstanding the board’s charge.
Scott LJ discussed the principles applying on an application for set-off costs: ‘The broad criterion for the application of set-off is that the plaintiff’s claim and the defendant’s claim are so closely connected that it would be inequitable to allow the plaintiff’s claim without taking into account the defendant’s claim. As it has sometimes been put, the defendant’s claim must, in equity, impeach the plaintiff’s claim.
Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of the equitable criterion I have endeavoured to express. It was treated by May J in Currie and Co v The Law Society [1977] QB 990, 1000, as a ‘question for the court’s discretion’. It is possible to regard all questions regarding costs as being subject to the statutory discretion conferred on the court by section 51 of the Supreme Court Act 1981. But I would not have thought that a set-off of damages against damages could properly be described as a discretionary matter, nor that a set-off of costs against damages could be so described.’ and ‘A set-off of costs against costs, when all are incurred in the prosecution or defence of the same action, seems so natural and equitable as not to need any special justification. I would expect a party objecting to the set-off to give some special reason for the objection. It is, in my opinion, less obvious that a set-off of costs against damages would always be justified.’

Judges:

Farquharson LJ, Sir John Megaw, Scott L

Citations:

[1992] 1 WLR 492, [1992] 2 All ER 589

Statutes:

Legal Aid Act 1974 16(8)

Jurisdiction:

England and Wales

Citing:

Not Followed – Anderson v Hills Automobiles (Woodford) Ltd 1965
. .
Applied – Cook v Swinfen CA 1967
The plaintiff could not recover damages for the mental distress of conducting litigation. The court found it difficult to draw the line as to where such damage could be identified. In this case the damage could not reasonably be said to have flowed . .
Cited – Carr v Boxall 1960
. .
Cited – Currie and Co v The Law Society 1976
Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of equitable rules. May J said: ‘[T]he set-off takes precedence over the solicitor’s particular lien, . .

Cited by:

Applied – 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 – 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 . .
Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
Cited – Ahmad v London Borough of Brent and Others QBD 25-Feb-2011
. .
Cited – Rybak and Others v Langbar International Ltd ChD 18-Feb-2011
. .
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.

Legal Aid, Costs

Updated: 13 May 2022; Ref: scu.190229

The plaintiff could not recover damages for the mental distress of conducting litigation. The court found it difficult to draw the line as to where such damage could be identified. In this case the damage could not reasonably be said to have flowed from the solicitor’s failures about which the complaint was made: ‘In these circumstances I think that, just as in the law of tort, so also in the law of contract, damages can be recovered for nervous shock or anxiety state if it is a reasonably foreseeable consequence. So the question became this: when a client goes to a solicitor, is it a reasonably foreseeable consequence that, if anything goes wrong with the litigation owing to the solicitor’s negligence, there will be a breakdown in health? It can be foreseen that there will be injured feelings; mental distress; anger; and annoyance; but for none of these can damage be recovered. It was so held in Groom v. Crocker [1939] 1 K.B. 194 on the same lines as Addis v. Gramophone Co. [1909] A.C. 488. Is it reasonably foreseeable that there may be an actual breakdown in health? I do not think so. It was suggested in this case that there were special circumstances in that Mrs. Cook was peculiarly liable to nervous shock. I am afraid she was. The history of her life shows one nervous breakdown after another. If this special circumstance was brought home to Mr. Swinfen, it might enlarge the area of foreseeability so as to make him liable. But it was not pleaded. and when Mr. Moloney put questions to Mr. Swinfen, he did not succeed in showing that special circumstances were brought home to him. All Mr. Swinfen knew was that she was a woman obviously highly strung and worried as any woman would be in the circumstances. But that does not mean that he should foresee that, if he was negligent, she would suffer injury to health. In all these cases of nervous shock and breakdown in mental health, it is very difficult to draw the line. In King v. Phillips [1953] 1 Q.B. 429, 442 I asked: ‘Where is the line to be drawn?’ I found the answer given by Lord Wright: ‘Only where’ in the particular case the good sense of the judge decides”.’

Judges:

Lord Denning MR

Citations:

[1967] 1 WLR 457

Jurisdiction:

England and Wales

Citing:

Appeal from – Cook v Swinfen 1966
. .

Cited by:

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 . .
Distinguished – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Wiseman v Virgin Atlantic Airways Ltd QBD 29-Jun-2006
The claimant said that he was refused permission to board a flight by the defendants representative without paying a bribe, and was publicly humiliated for not doing so.
Held: Whilst the claimant could recover for his own additional expenses, . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Costs

Updated: 13 May 2022; Ref: scu.190230

Judges:

Scott LJ

Citations:

[1965] CLY 3177, [1965] 1 WLR 745

Jurisdiction:

England and Wales

Cited by:

Not Followed – 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 – 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.

Legal Aid, Costs

Updated: 13 May 2022; Ref: scu.190231

A client was granted legal aid in a children case, but with a costs limitation of andpound;5,000. The solicitor did not apply to extend that limit, but exceeded it. When the excess was disallowed, he challenged the right of the Board to impose limitations in public law cases.
Held: The word ‘limitation’ must bear its ordinary and natural meaning. The section allowed the Board to impose such limitations, and there was nothing inherently unjust about them, since an amendment could be sought, and further appeal was allowed.

Citations:

Gazette 08-Mar-2001, Times 16-Mar-2001

Statutes:

Legal Aid Act 1988 15 (4)

Jurisdiction:

England and Wales

Legal Aid, Costs

Updated: 08 May 2022; Ref: scu.88531

CourtService In these two related appeals heard together the learned Judge dealt with the appropriate penalty to apply when Regulation 109 of the Legal Aid (General) Regulations was invoked. In the first case there had been a delay of 4 years between the conclusion of the proceedings and the notice of commencement of the assessment proceedings, which the Deputy Costs Judge had held to be totally unreasonable, so that he allowed no profit costs whatsoever. The authorities were reviewed. A complete disallowance of the solicitors’ profit costs was not an appropriate remedy, bearing in mind that the Legal Services Commission had not suffered any prejudice, and indeed the only prejudice suffered might have been that of the claimants’ solicitors. The Judge did not feel it appropriate to lay down any rule in relation to such applications, but, on the facts of this case where the bill was some andpound;30,000, he felt that a 30% deduction from the bill was appropriate. In the second case the Costs Judge had taken an adverse view of the claimants solicitors conduct, which the learned Judge did not consider to have been correct, but in that case he did not feel that he had sufficient information to come to a final decision, and therefore remitted the matter to the Costs Judge for reconsideration in the light of his judgment.

Judges:

Mr Justice Park sitting with Assessors

Citations:

[2001] EW Costs 15

Jurisdiction:

England and Wales

Costs, Legal Aid

Updated: 29 April 2022; Ref: scu.185955

This was a review under RSC Order 62 rule 35. Many years previously, E had suffered abuse when in care. He obtained legal aid to bring a claim for compensation against his local authority and his solicitors wished to instruct an expert who was based in London. He lived in Liverpool. The relevant Legal Aid Board would not give authority to incur the expenses of travelling to London. After challenging the Legal Aid Board decision at various hearings, he obtained legal aid to apply for judicial review of the Legal Aid Board’s refusal. He was successful and an order for costs was made against the Legal Aid Board as well as an order for a legal aid taxation. The main issue in this review related to costs claimed in respect of the judicial review proceedings before legal aid was granted. On taxation (in 1998) the Master disallowed the pre legal aid costs relying on the indemnity principle. The Master held that there was no legal liability on E to pay these costs to the solicitor and, therefore, there were no costs in this period which E could claim from the Legal Aid Board. On 6 April 1999, in the period after taxation but before objections were heard by the Master, E signed a witness statement which stated, amongst other things: ‘My solicitor advised me that I would be personally responsible for the fees involved and whether steps were taken to recover those costs would be a matter of good will on my solicitor’s part. It was never agreed expressly or impliedly that under no circumstances whatsoever would I be responsible for the costs involved or that I would not have to pay any costs. It was, of course, well known to me and my solicitors that my means were extremely limited … However this did not mean that I was not legally responsible for my solicitors costs which were not covered by legal aid.’

Judges:

Mr Justice Scott Baker sitting with Assessors

Citations:

[2001] EW Costs 8

Jurisdiction:

England and Wales

Costs, Legal Aid

Updated: 29 April 2022; Ref: scu.185948

An unsuccessful Defendant cannot be ordered to pay costs on an indemnity basis to a legally aided Plaintiff, even if it might otherwise be justified. The normal basis is for standard costs.

Judges:

Beldam LJ

Citations:

Gazette 11-Jan-1996, Times 22-Dec-1995, [1996] 1 WLR 1228

Jurisdiction:

England and Wales

Cited by:

Cited – Malhotra v Dhawan CA 26-Feb-1997
There had been litigation as to the payment due on fees earned during the partnership. One party had destroyed the evidence which would have settled many issues. The court discussed the principle that it should presume all against a destroyer of . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Aid

Updated: 10 April 2022; Ref: scu.90539

The claimants had lost their claim on an insurance policy, and had had costs awarded against them subject only to the issue of whether the fact that they had been legally aided protected them.
Held: The applicants had been found to be guilty of fraud, both as to the underlying claim, and in their applications for legal aid. They were accordingly not entitled to the protection which those with a legal aid certificate would normally receive.

Judges:

Chamber QC J

Citations:

Times 07-Jul-2003

Statutes:

Access to Justice Act 1999 11(1)

Jurisdiction:

England and Wales

Legal Aid, Costs

Updated: 01 April 2022; Ref: scu.184553

The short but important issue for decision in this case is the date from which the three month period for making an application that the Legal Services Commission should pay the costs of a successful non-legally aided opponent, specified in Section 11(1), of The Access to Justice Act 1999 pursuant to Regulation 10(2) of the Community Legal Services (Costs) Regulations 2000, runs. In short, does the three month time limit run from the date when the order is pronounced by the Court of Appeal, or by the necessarily later date upon which it is entered?

Judges:

Master Rogers

Citations:

[2006] EWHC 90065 (Costs)

Links:

Bailii

Jurisdiction:

England and Wales

Costs, legal Aid

Updated: 09 February 2022; Ref: scu.443625