The defendant had been unable to obtain legal aid, and resorted to the Automobile Association which indemnified him for his costs of his successful appeal. The respondent was legally aided on the appeal and the appellant sought an order for his costs against the Law Society. The Law Society could only be liable in respect of costs which had been ‘incurred’ by the unassisted litigant. The Law Society argued that the costs had been incurred by the AA and not by the litigant.
Held: Despite it being stated by the AA’s solicitors that Mr Averay had been told that he would be indemnified in all respects by the AA so that no part of the costs of the appeal had or would have fallen on him, he was the party to the appeal, the person responsible for costs, and, if the appeal had failed, the person who would have been ordered to pay costs, and that if those costs had not been paid his goods would have been liable to execution rather than those of the AA.
Lord Denning MR found that the legal fees were incurred by Averay, said: ‘[Mr Hames] suggests that in this case the costs were not incurred by Mr Averay, but were incurred by the Automobile Association; because the Automobile Association undertook the appeal and instructed their solicitors and paid them. I cannot accept this suggestion. It is clear that Mr Averay was in law the party to the appeal. He was the person responsible for the costs. If the appeal had failed, he would be the person ordered to pay the costs. If the costs had not been paid, execution would be levied against him and not against the Automobile Association. The truth is that the costs were incurred by Mr Averay, but the Automobile Association indemnify him against the costs.’
Judges:
Lord Denning MR
Citations:
[1973] 1 WLR 510
Citing:
See Also – Lewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited by:
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Lists of cited by and citing cases may be incomplete.
Costs
Updated: 18 May 2022; Ref: scu.566838