B e f o r e :
MR JUSTICE MUNBY
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R (BATEMAN and BATEMAN)
v
LEGAL SERVICES COMMISSION
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Mr Colin Ross-Munro QC appeared on behalf of Mrs Bateman
Mr Jonathan Brettler appeared on behalf of Mr Bateman
Mr Jonathan Harvie QC and Ms Julia Ellins appeared on behalf of the Commission
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Judgment
As Approved by the Court
Crown Copyright ©
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- October 2001
MR JUSTICE MUNBY
- These are separate applications for judicial review by Teresa Kim Bateman (CO/433/2000) and her husband Terence Henry Bateman (CO/434/2000) to quash decisions of the Birmingham Area Committee (“the Committee”) of the Legal Aid Board, now the Legal Services Commission (“the Board”). The decisions were contained in a single decision letter dated 10 November 1999. The Committee’s decision in each case was to uphold the decision which had been taken in July 1999 to revoke various legal aid certificates that had previously granted, some to Mrs Bateman and some to her husband.
- On 10 September 2001 I handed down judgment quashing the decisions of the Committee. I now have to decide certain issues in relation to costs which were argued before me on 28 September 2001. The first is whether, notwithstanding that the Board was unsuccessful in resisting Mr and Mrs Bateman’s claims, I should nonetheless deprive the successful claimants of part of their costs. The other is whether there should be set off against the claimants’ costs of these proceedings the monies which will be owing to the Board in the event of one or both of the further appeals directed by paragraph [122] of my previous judgment leading to a decision to uphold the revocation of one or more of the legal aid certificates.
- I shall deal with these two issues in turn.
Should the claimants have all their costs?
- Mr Jonathan Harvie QC on behalf of the Board does not seek any order for costs against the claimants. Nor, wisely, does he go so far as to suggest that there should be no order for costs. He submits, however, that Mr and Mrs Bateman should recover only a percentage - and not necessarily each the same percentage - of their costs.
- Mr Harvie points out, correctly, that both Mrs Bateman, and to an even greater extent Mr Bateman, took a significant number of points on which they wholly failed: see paragraphs [65]-[73], [74]-[81], [87]-[88], [89]-[93], [94], [100], [111]-[112] and [114] of my previous judgment. He directs attention to the language I used in dismissing some of these points. Thus for example, and I do not provide a comprehensive anthology, he refers me to what I said in paragraphs [75] (“argument is quite hopeless”), [89] (“lot of ingenuity ... applied in ... a futile and doomed attempt ... a piece of sophistry”), [94] (“forlorn attempts ... argument is hopeless ... argument ... is wholly untenable”), [95] (“thus far ... nothing of substance in any of [counsel’s] many arguments”) and [99] (“no merit at all”).
- As against this, of course, Mr Colin Ross-Munro QC on behalf of Mrs Bateman and Mr Jonathan Brettler on behalf of Mr Bateman can point not merely to the fact that, overall, they were successful in the outcome but also to the number of discrete issues on which they succeeded either in whole or in part: see paragraphs [82]-[84], [101]- [102], [104]-[105], [107]-[110] and [118] of my judgment.
- The principles upon which costs are now awarded are to be found set out at some length in CPR 44.3 and, in particular, in CPR 44.3(2), (4) and (5):
“(2) If the court decides to make an order about costs -
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order.
(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including -
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention (whether or not made in accordance with Part 36) ...
(5) The conduct of the parties includes -
(a) conduct before, as well as during, the proceedings, and in particular the extent to which the parties followed any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue;
(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.”
- In the application of CPR 44.3 I was pressed both by Mr Ross-Munro and by Mr Brettler with the well known passage in the judgment of Nourse LJ in In re Elgindata Ltd (No 2) [1992] 1 WLR 1207 at p 1214A-D. I have to say that reference in this context to what without disrespect I might refer to as pre-Woolf authority is unlikely to be helpful and may even on occasions be misleading.
- CPR 44.3 was as it seems to me intended to mark a clear break with the past. CPR 44.3 is to be understood as having liberated the court from the straitjacket of tradition and past practice. Pre-Woolf cases on costs can no longer safely be treated as being good law. In particular, although it is not for a puisne judge to say that In re Elgindata should simply be discarded, in my judgment it cannot safely be said that it represents the law.
- The profession must realise that the court is now, and to a significantly greater extent than in the past, ready and willing to make separate orders for costs reflecting the outcome on different issues and to disallow costs incurred by ultimately successful litigants in pursuit of points on which they fail.
- I refer in the first place to what Lord Woolf MR said in AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 at p 1522H:
“I draw attention to the new Rules because, while they make clear that the general rule remains, that the successful party will normally be entitled to costs, they at the same time indicate the wide range of considerations which will result in the court making different orders as to costs. From 26 April 1999 the “follow the event principle” will still play a significant role, but it will be a starting point from which a court can readily depart. This is also the position prior to the new Rules coming into force. The most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new Rules are reflecting a change of practice which has already started. It is now clear that too robust an application of the “follow the event principle” encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so.”
- In Bank of Credit and Commerce International SA (in liquidation) v Ali (No 4) (1999) 149 NLJ 1734 Lightman J said:
“The relevant principles governing costs are to be found in the Civil Procedure Rules 1998 (the CPR). Much of the learning developed prior to the adoption of that code on the court’s approach is likely to prove today to be a mere distraction to a judge and most certainly is of no assistance to the court. ... The straitjacket imposed on the court by the decision of the Court of Appeal in In re Elgindata Ltd (No 2) [1992] 1 WLR 1207 ... is gone, and the search for justice is untrammelled by constraints beyond those laid down by the new code itself. I may add that for the purposes of the CPR success is not in my view a technical question but a result in real life, and the question as to who succeeded is a matter for the exercise of common sense.”
- AEI and BCCI were considered by Neuberger J in Harrison v Bloom Camillin (unreported - 4 February 2000). He said (Transcript pp 2C, 5D):
“The approach of the court to the assessment of costs has, in my judgment, been re-written in the new CPR. For my part I would not suggest that earlier cases as to costs are of no assistance, but they cannot be treated as being good law because they are based on the RSC.”
Having referred to AEI and BCCI, and associated himself with Lightman J’s observations in the latter case, Neuberger J continued:
“While it is right to say that Re Elgindata should not be discarded, I do not think it can safely be said that it represents the law.”
- Finally, I should refer to what Brooke LJ said in Winter v Winter [2000] CAT 2051 at para [42]. That was a case in which the Court of Appeal reversed the trial judge, Blackburne J, sitting as Vice Chancellor of the County Palatine of Lancaster, on a question of costs. The Lord Justice, having set out the relevant parts of CPR 44.3, continued:
“In judgments before the Civil Procedure Rules came into effect on 22nd April 1999, the approach of judges, assisted by supporting judgments of this court, in particular the case of Elgindata, was similar to that adopted by the Vice Chancellor, so that if a claimant substantially succeeded he was likely to be awarded an order for costs even though he failed on certain issues. The new rules provide a break from that tradition and enable a court to do greater justice if a party has caused court costs to be expended on an issue on which he ultimately fails.”
- Mr Ross-Munro and Mr Brettler also referred me to the various factors or criteria distilled from the decisions of Neuberger J in Antonelli v Allen (2000) Times December 8 and Underhill QC in Scholes Windows Ltd v Magnet Ltd (No 2) [2000] ECDR 266 which are to be found set out in the 2001 White Book at para 44.3.2, that is to say:
(1) the reasonableness in the circumstances of the successful party pursuing the issue on which he was unsuccessful (and, related to this, the likelihood of his having succeeded on the issue)
(2) his conduct in pursuing that issue and generally in relation to the litigation
(3) the extra time and costs incurred by running the issue (i) in terms of pre-hearing preparation (eg, preparing witness statements, documents and so on) and (ii) in court during the hearing
(4) the extent to which the unsuccessful point was inter-related or overlapped, in terms of evidence or argument, with the points on which the successful party succeeded
(1)
(5) the extent to which it is just in all the circumstances to deprive the successful party of some or all of his costs (real weight being given to the fact that overall he won).
Whilst I have no particular quarrel with any of these criteria - and indeed have found them useful in analysing the issues which arise for consideration in the present case - I confess to some misgivings about the wisdom of even attempting to gloss the language of CPR 44.3. I certainly do not propose to add to the exegetical jurisprudence.
- I will however add two comments. In the first place one has to remember that CPR 44.3 is to be read against the background of the drastic changes brought about by the Woolf reforms. In particular the statutory context in which CPR 44.3 falls to be applied is one informed not merely by the “overriding objective” in CPR 1.1 and by the court’s general case management powers under CPR 3.1 but also by such powers, in some cases novel, as those conferred on the court (and I do not give an exhaustive list) by CPR 24.2, 32.1 and 35.1. These are all, as it seems to me, designed to ensure that from now on, and more so than in the past, the court concentrates - and, so far as case management can achieve this, requires the litigants to concentrate - on the real issues in the case. Thus the setting in which CPR 44.3 now operates is very different indeed from that in which RSC Order 62 previously operated.
- The tension between the desirable pursuit of forensic brevity and the advocate’s understandable fear of inadvertently betraying his client’s interests by not taking every possible point has existed as long as there have been professional advocates. The difficulty is nicely brought out in the account of a robing room conversation with a fellow advocate which Pliny recounts in a letter (Ep I, xx, 14) to Tacitus. In response to Regulus, who says “You think you should follow up every point in a case, but I make straight for the throat and hang on to that”, Pliny says:
“I can’t see the throat, so my method is to feel my way and try everything - in fact I leave no stone unturned.”
In his letter to Tacitus he comments:
“On my farms I cultivate my fruit trees and fields as carefully as my vineyards, and in the fields I sow barley, beans and other legumes, as well as corn and wheat; so when I am making a speech I scatter various arguments around like seeds in order to reap whatever crop comes up. There are as many unforeseen hazards and uncertainties to surmount in working on the minds of judges as in dealing with the problems of weather and soil.”
- One of the merits of great advocates, as Lord Pearce pointed out in Rondel v Worsley [1969] 1 AC 191 at p 255G, has been the ability ruthlessly to sacrifice nine points and win on the tenth and best. The lengthening of trials, as Lord Reid pointed out in the same case at p 229A, does not necessarily lead to any closer approximation to ideal justice. And this is an important part of the philosophy underlying the CPR. As Lord Woolf MR’s comment in AEI shows, the ‘leave no stone unturned’ approach is no longer to be encouraged. Indeed, in the ordinary run of litigation - I leave on one side cases in which fundamental human rights are engaged, where somewhat different considerations may apply - it is simply no longer acceptable. On the contrary, CPR 44.3 can properly and where appropriate should be applied in such a way as positively to encourage litigants to be selective as to the points they take and positively to discourage litigants taking a multiplicity of ‘bad’ points.
- The other matter is this. Given the terms of CPR 54 the scope for judicial case management in judicial review cases is more limited than in the case of much High Court litigation. Moreover it is only comparatively infrequently that the judge who grants permission will be in any effective position to limit the ambit of the subsequent application for which he has granted permission. The present case is a good example. As Mr Brettler observed (see paragraph [65] of my judgment), the point of construction with which he quite logically began his submissions was one on which, if he succeeded, he would without further ado establish his right to relief. It was, in fact, the very point on which, as I recorded in paragraphs [2] and [73] of my judgment, Collins J had expressed a clear and adverse view when refusing permission on the paper application but on which, as I was subsequently informed, Tucker J on the renewed application was prepared to accept that Mr Brettler had an arguable case. In the event I rejected Mr Brettler’s arguments: see paragraphs [65]-[73] of my judgment.
- The fact that Tucker J gave permission to apply on the basis that Mr Brettler had at least one arguable point on which, if successful, he would win did not, however, confer a general licence to pursue any and every point which was to be found in Mr Bateman’s Form 86A or in the skeleton argument used before him which Tucker J directed was to be appended to that Form 86A. The fact that the judge who grants permission has not made adverse comment on some part of the claimant’s case is not, in my judgment, to be taken as any judicial acknowledgment of the appropriateness of pursuing that particular point further.
- An applicant who has been granted permission to apply for judicial review nonetheless remains under an obligation to consider with care just which arguments ought and which arguments ought not to be pursued at the substantive hearing. Matters contained in the defendant’s acknowledgment of service or the defendant’s evidence may demonstrate that points which were initially thought by the claimant to have merit in fact do not. This is why, despite the recent changes in procedure, the Administrative Court’s standard form of permission order still contains the well known warning which, in its current form, reads as follows:
“Where permission to apply has been granted, claimants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the defendant’s evidence.”
The need for conscientious performance of this obligation has been pointed out on previous occasions: see for example Brooke J in R v Horsham District Council ex p Wenman [1995] 1 WLR 680 at p 701A referring to what Hodgson J had earlier said in R v Secretary of State for the Home Department ex p Brown (1984) The Times, 6 February. People must appreciate that failure in this regard may be visited with adverse costs orders.
- Finally I should add this. The fact that a judge has given permission to apply for judicial review will always be a relevant consideration when considering subsequent issues about costs. Indeed, and as R v Horsham District Council ex p Wenman [1995] 1 WLR 680 illustrates, the fact that permission has been given may be a powerful reason why an ultimately unsuccessful claimant’s legal advisers should not be exposed to a wasted costs order. But that does not mean that even an ultimately successful claimant will necessarily be able to rely upon the grant of permission as an answer to a wholly or partially adverse costs order.
- I return to the facts of the present case.
- I have read and re-read my previous judgment and the skeleton arguments lodged for the purposes of the original hearing. I have re-read the very helpful skeleton arguments which have been lodged in relation to the issue of costs. I have had regard to each of the matters referred to in CPR 44.3(2), (4) and (5) and to the various factors which I have summarised in paragraph [15] above. I have had regard to all the circumstances of the case. In particular I have had regard to the facts (i) that the case was, as I remarked in paragraphs [54] and [120] of my judgment, one of the utmost gravity to both claimants, (ii) that the penalty inflicted on them and which they were seeking to challenge - the revocation of their legal aid certificates - was a draconian one, (iii) that in Mrs Bateman’s case there was never any allegation of dishonesty or deliberate concealment, (iv) that in Mr Bateman’s case the allegation of dishonesty was introduced by the Board in what I described in paragraph [118(4)] of my judgment as a “profoundly unsatisfactory” manner, (v) that Tucker J did give permission to apply for judicial review and accepted as arguable one of the points on which the claimants ultimately lost (though in this context it equally must not be forgotten that Collins J had previously refused permission and expressed the contrary view), (vi) that in Mrs Bateman’s case the Board rejected her offer of compromise contained in a letter dated 22 May 2001, and (vii) that, when all is said and done, the claimants did succeed in overturning the Committee’s decisions - in short, succeeded in their applications for judicial review - and did so not just on one but on a number of grounds.
- These are all powerful reasons why - and Mr Harvie does not dispute this - the claimants are entitled to substantial costs orders in their favour. But the stark fact nevertheless remains that both claimants, and Mr Bateman to a greater extent than Mrs Bateman, pursued, at no little expenditure of time and money, a great number of points on which they ultimately failed, many of them, I have to say, in circumstances where the prospects of success were from the outset exiguous or worse. I refer in this connection to the anthology in paragraph [5] above. As will be apparent from my previous judgment Mrs Bateman showed somewhat more restraint, but Mr Bateman, in effect, took virtually every point that could possibly have been taken without going beyond the limits of what is proper.
- I wish to emphasise that there has been no suggestion at all - nor in my judgment could there be - of any impropriety of any sort on the part of either Mr Ross-Munro or Mr Brettler. I wish to make it absolutely clear that they and their instructing solicitors have behaved throughout with complete professional propriety. The contrary has never been suggested, nor could it be. Nor is there any suggestion that anything either done or omitted to be done is such as could even begin to justify any invocation of the wasted costs jurisdiction. Indeed, for all I know, Mr and Mrs Bateman may have been the driving forces behind the litigation strategy that was adopted. Be that as it may, and so far as the Board is concerned it matters not, the fact remains that this was litigation pursued on the basis, certainly so far as Mr Bateman was concerned, of leaving no stone unturned and in the case of Mrs Bateman of leaving but few stones undisturbed. To put it plainly, in language used by Mr Harvie which I am happy to adopt, this was a case in which unmeritorious points were vigorously pursued. That, in my judgment, is something which ought fairly to be reflected in my order as to costs.
- In my judgment this is a plain case for depriving both claimants of at least part of the costs to which, in accordance with CPR 44.3(2)(a), they might normally expect to be entitled. Having regard to all the circumstances of the case, exercising my discretion in accordance with CPR 44.3 and asking myself, What order for costs does justice require? I have come to the conclusion that there ought in principle to be excluded from the costs payable by the Board to the claimants all those costs attributable to the various issues on which the claimants ultimately failed.
- I should add one observation. CPR 44.3(4)(c) requires me to have regard to any offer to settle which may have been made, whether or not in accordance with CPR 36. As I have mentioned in paragraph [24] above, Mrs Bateman made an offer of compromise which the Board rejected. Mr Ross-Munro places some reliance on this. As I have already said I have of course had regard to this. But it seems to me to carry very little, if indeed any, weight in the circumstances which obtain here. The fact, if fact it be, that a litigant wrongly rejects an offer of compromise which ought to have been accepted does not give his opponent carte blanche to conduct the litigation thereafter in an extravagant fashion. Nor, in my judgment, is it any reason why, in the circumstances of this case, Mrs Bateman should not be deprived of those costs attributable to the various issues on which she ultimately failed. It is not enough to say, as does Mr Ross-Munro, that if Mrs Bateman’s offer had been accepted no further costs would have been incurred by anyone. No doubt, but so what.
- At this point CPR 44.3(7) comes into play and accordingly I “must” if this is “practicable” make an order under either CPR 44.3(6)(a) or (c). An order under (c) would plainly not be appropriate; an order under (a) is, in principle, called for. Is it “practicable” for me to make an order under CPR 44.3(6)(a), that is, an order that the claimants are to receive a proportion of their costs? The difficulty, of course, and in some cases it may be insuperable, is in coming to a fair - a just - appraisal of what the appropriate proportion is. Mathematical exactitude will almost always be difficult if not impossible. In the present case the difficulty is compounded by the fact that there was a substantial degree of overlap between at least some of the arguments on which the claimants succeeded and at least some of the arguments on which they failed. Nonetheless I have come to the conclusion that I can, justly and fairly, come to an appropriate figure. In my judgment an order under CPR 44.3(6)(a) is both “practicable” and just.
- Mr Harvie does not assert that any time or expense was unnecessarily or inappropriately incurred at the stage when the parties were preparing their evidence. What he does say is that a very large amount of the time taken up in preparation of the skeleton arguments, and to a somewhat lesser extent at court during the hearing, was taken up in dealing with those issues on which the claimants ultimately failed. Mr Ross-Munro and Mr Brettler dispute this. Mr Ross-Munro’s best point - and it carries very considerable weight as it seems to me - is that in order for him to make and succeed on those submissions on which Mrs Bateman was ultimately successful it was necessary for me to be taken at some length and in careful detail through much of the documentation in the case: see in this connection what I said in paragraph [3] of my judgment. So, he says, very little time was taken up in pursuing those fact related arguments on which Mrs Bateman was in the end unsuccessful. He adds that so far as Mrs Bateman was concerned - the position is rather different in relation to Mr Bateman - no court time at all was taken up on unsuccessful points of construction. Mr Brettler makes similar submissions in relation to Mr Bateman.
- Mr Harvie accepts the general thrust of Mr Ross-Munro’s main point, and very properly disclaims any suggestion that Mr Ross-Munro’s necessarily painstaking analysis of the materials took any longer than was appropriate. He does nonetheless assert that very much more time than either Mr Ross-Munro or Mr Brettler is willing to accept was in fact taken up at each of the two stages I have mentioned in dealing with the many points on which the claimants failed. He also comments, correctly as it seems to me, that a not insignificant amount of Mr Ross-Munro’s time was taken up in explaining how, as he would have had it, the documentary materials as he had analysed them for the purpose of making good those arguments on which he ultimately succeeded also supported his arguments on those points on which he ultimately failed.
- I have read and re-read my previous judgment and the skeleton arguments lodged for the purposes of the original hearing and done my best with the assistance of counsel to reconstruct how much of the time during the hearing on 21 and 22 June 2001 was taken up on those issues on which the claimants ultimately failed. Perhaps not surprisingly, given how the pressures of the forensic process always tend to produce somewhat polarised positions, I have come to the conclusion that the time and expense taken up in dealing with those issues on which the claimants ultimately failed was not as much as Mr Harvie would have it but significantly more than either Mr Ross-Munro or Mr Brettler was willing to acknowledge. Doing the best I can I have come to the conclusion that the proportion of their overall costs which are attributable to the various issues on which the claimants ultimately failed, and which therefore ought to be excluded from the costs payable to them by the Board, is in the case of Mr Bateman 25% and in the case of Mrs Bateman 15%.
- I should add that, since I am concerned with the question of the extent to which, if at all, the claimants should be deprived of costs to which in accordance with CPR 44.3(2)(a) they might normally expect to be entitled, I have given them the benefit of the doubt in assessing the appropriate proportion for the purposes of CPR 44.3(6)(a).
Set-off
- That I have power under the court’s inherent jurisdiction to make the order for which Mr Harvie contends was not disputed by either Mr Ross-Munro or Mr Brettler. It is clear from the authorities to which I was referred: Derham on Set-off (ed 2, 1996) pp 34-35 and, in particular, Reid v Cupper [1915] 2 KB 147 and National Company for Co-operative Insurance v St Paul Reinsurance Co Ltd (unreported - Thomas J 21 April 1998). The question is whether I should exercise that jurisdiction. The authorities to which I have referred show that the matter is one for the exercise of judicial discretion and that the court has a broad discretion to do what it thinks proper.
- It is common ground that if the Board in fact pays the claimants the costs which I have awarded those monies will be irrecoverable, in the sense that they will almost immediately, and long before the claimants’ further appeals have been disposed of, be paid away. They will be paid away - quite properly, I might add - either to the claimants’ solicitors in discharge of their bills or (I am not quite sure which) by way of reimbursement to those of the claimants’ friends and relations who have hitherto been funding the litigation.
- Mr Harvie says that in these circumstances it would be unfair if the Board were to be deprived of any effective recourse to those monies in the event of the claimants’ further appeals failing. He points out, referring to paragraph [54] of my previous judgment, that the amounts owing to the Board in the event of the claimants’ legal aid certificates remaining revoked are some £47,000 in the case of Mr Bateman and some £80,000 in the case of Mrs Bateman. He submits, referring to what I said in paragraphs [112] and [120] of my judgment, that a further decision adverse to the claimants might well be arrived at when their further appeals are heard. He says that the reality, in that event, is that unless I direct a set-off the Board will never see a penny of the very large sums due to it. That, in the circumstances, he says, would be unfair. He says that in all the circumstances the order for a set-off which he seeks will produce the just and equitable result. He submits that those who are supporting the claimants financially in their pursuit of these proceedings must always have known that the litigation was somewhat speculative.
- What Mr Harvie is seeking by means of a set-off is, of course, a form of security for the Board’s claims against the claimants in the event of their legal aid certificates being revoked - a form of security which will prevent the claimants’ financial supporters from being paid until a time at which, if the Board ultimately proves successful, the claimants are unlikely to be in a position to meet their unsecured liabilities. In effect, what he is saying is that in the event of the claimants’ likely insolvency if their legal aid certificates are revoked (see paragraph [54] of my judgment), the loss should fall not on the Board but rather on the claimants’ advisers or supporters.
- Mr Ross-Munro and Mr Brettler say that the outcome of the further appeals can only be a matter of speculation at this stage and that it would be neither just nor equitable to order a set-off. Mr Ross-Munro also draws my attention to a passage in Derham at p 34 where it is said (and authority is cited in support) that “execution on a judgment obtained at law generally will not be stayed on the basis of a cross-claim that accrued after the judgment” (emphasis in original).
- Obviously if I grant the Board the relief it seeks and the claimants are ultimately vindicated they will have been kept out of money which is rightfully theirs. But that will be fully compensated for by the interest which will be running on the unpaid costs in accordance with CPR 40.8 and Hunt v R M Douglas (Roofing) Ltd [1990] 1 AC 398. The set-off which Mr Harvie seeks will come into operation only if, at the end of the day, it is held that some or all of the legal aid certificates granted to one or both of the claimants ought to be revoked, that is, only if it is established that one or other of the conditions in reg 78 of the Civil Legal Aid (General) Regulations 1989 has been satisfied.
- But if the Board’s officers can establish to the satisfaction of the independent tribunal - the Committee - which Parliament has set up for this purpose that the requirements of reg 78 are met, and, in consequence, that one or both of the claimants ought to repay to the Board public monies which ex hypothesi will have been obtained by their either making untrue statements to the Board or failing to disclose material facts to the Board, then why should the Board not be able to set-off the monies owing by the claimants to the Board against the costs payable by the Board to the claimants? I can see no good reason why not, whether one compares the Board’s position with that of the claimants or with that of the claimants’ advisers or financial supporters. It seems to me that justice and fairness clearly require that the Board should in those circumstances, and those are the only circumstances in which the set-off can operate, be entitled to the set-off for which Mr Harvie contends.
- Exercising the broad discretion which I have to do what I think is proper having regard to all the circumstances of the case I am satisfied that the Board ought to have the set-off which it seeks. There is, in my judgment, nothing in the passage in Derham to which Mr Ross-Munro referred me which stands in the way of my making such an order.
Order
- So far as concerns the costs of the proceedings down to the end of the hearing on 10 September 2001 I shall accordingly order that
(6) the defendant is to pay to the claimants in the case of Mr Bateman 75% and in the case of Mrs Bateman 85% of their respective costs to be assessed if not agreed
(7) payment of the costs awarded to each of the claimants be stayed pending the outcome of the decisions in their respective cases to be made by separate funding review committees of the defendant sitting as area committees
(8) in the event of one or both of the funding review committees upholding the revocation of one or more of the claimants’ respective legal aid certificates the monies owing by such claimant to the defendant shall be set off against the costs to which such claimant is entitled.
- So far as concerns the costs of and incurred in connection with the hearing on 28 September 2001 I propose to make no order. The claimants submit that I should make the same order in relation to these costs, whatever it may be, as in the event I may decide to make in relation to the main costs. I do not agree. On the one hand the Board has failed to obtain, let alone to better, the order which it proposed in open letters to the claimants dated 13 September 2001, namely that the Board should pay 50% of each claimant’s costs. I have ordered the Board to pay in the one case 75% and in the other case 85% of the claimants’ costs. On the other hand the Board has succeeded in defeating not merely the claimants’ arguments that there should be no reduction at all but also their arguments that there should be no-set off. In all the circumstances I think that justice will best be done if I make no order as to these costs.
