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 respondents to the appeal sought that their costs be paid by the LSC. It was not in dispute that the claimant should be ordered to pay the costs of the respondent to each appeal, and that ‘the determination of the amount of those costs which it is reasonable for the plaintiff to pay’ should be referred to a costs judge in accordance with the 1999 Act and the Regulations. The proceedings were, however, ongoing, and the question arose whether or not the costs judge would have jurisdiction in those circumstances to make an order against the LSC.
Held: Chadwick LJ said: ‘For my part I am not at all attracted by the suggestion that the question what order should be made in relation to the costs of this appeal should be adjourned for what may be a lengthy and indefinite period while these proceedings work their way through to final disposal. I can see no reason why a Section 11 (1) costs order should not be made at this stage in the form of paragraph 3 of the draft order that has been put before us; that is to say, an order that the determination of the appellant’s liability, if any, to pay costs and any application by the respondent for an order for payment of such costs by the Legal Services Commission be referred to a costs judge in accordance with Regulation 10 of the Community Legal Services Costs Regulations 2000. I would amend the paragraph so that it covers not only an application for an order under Section 18 of the Legal Aid Act 1988 but also an application under Regulation 5 of the Costs Protection Regulations 2000. The effect of an order in that form, as it seems to me, will be that any application for payment of Burton and Co’s costs by the Legal Services Commission will have to be made within three months of the date of the order. If, on such an application, the Legal Services Commission takes the point that the application is premature the costs judge will have power to adjourn the matter until there has been a final resolution of the proceedings; or, if he thinks it necessary, to refer the point for guidance by an appellate court.
My present view is that further guidance is unnecessary. To my mind the point is covered by the observations of Lord Denning MR in General Accident Car and Life Assurance Corporation Ltd v Foster . . . The only proceedings in relation to which we are asked to make an order for costs are the proceedings in this court. Those proceedings have been finally determined; and I can see no difficulty in the exercise by a costs judge of the jurisdiction conferred by the statute and the regulations in relation to the costs of those proceedings.’
Kennedy, Potter, Chadwick LJJ
[2003] EWCA Civ 70, [2003] 1 WLR 1511
England and Wales
See AlsoMasterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
CitedGeneral Accident Car and Life Assurance Corporation Ltd v Foster CA 1972
The court considered the use of the word ‘proceedings’ in the 1964 Act: ‘The first point is: what are the ‘proceedings’? Are they the proceedings from beginning to end – from the very first time when legal aid was granted? I think not. The only . .

Cited by:
CitedD 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 . .
CitedMaga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
CitedDunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.180713