The appellant argued that the Costs Practice Direction, supplementing Parts 43-48 of the CPR, had the same force in law as the Legal Aid in Family Proceedings (Remuneration) Regulations 1991; and that they impliedly amended or repealed them in so far as they were inconsistent.
Held: The argument was rejected. Hale LJ said: ‘Unlike the Lord Chancellor’s orders under his ‘Henry VIII’ powers, the Civil Procedure Rules 1998 themselves and the 1991 Remuneration Regulations, the Practice Directions are not made by Statutory Instrument. They are not laid before Parliament or subject to either the negative or positive resolution procedures in Parliament. They go though no democratic process at all, although if approved by the Lord Chancellor he will bear ministerial responsibility for them to Parliament. But there is a difference in principle between delegated legislation which may be scrutinised by Parliament and ministerial executive action. There is no ministerial responsibility for Practice Directions made for the Supreme Court by the Heads of Division. As Professor Jolowicz says . . ‘It is right that the court should retain its power to regulate its own procedure within the limits set by statutory rules, and to fill in gaps left by those rules; it is wrong that it should have power actually to legislate’.’
Judges:
Hale LJ
Citations:
[2001] 1 FLR 602
Statutes:
Legal Aid in Family Proceedings (Remuneration) Regulations 1991, Civil Procedure Rules
Jurisdiction:
England and Wales
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.
Legal Aid, Costs
Updated: 11 May 2022; Ref: scu.408768