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	England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> E v Legal Aid Board [2001] EWHC 9009 (Costs) (5 October 2001) URL: http://www.bailii.org/ew/cases/EWHC/Costs/2001/9009.html Cite as: [2001] EWHC 9009 (Costs)

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E v Legal Aid Board
5 October 2001
Mr Justice Scott Baker sitting with Assessors

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."

At the objections hearing the Master remained of the same view despite that evidence and his view was upheld by the learned Judge at the review. It is true that, when it is proved or admitted that a litigant has a solicitor acting for him in pursuing litigation, there is a presumption that he will be liable for the solicitor’s reasonable costs. However, where the court is satisfied that a genuine issue has been raised as to whether the litigant has such liability, the burden shifts to the receiving party to prove his entitlement.

In this case the Master was entitled to view with some scepticism the witness statement which E had signed only a month or so before the objections and which was not in existence at the time of the original taxation. The absence of any cross examination of E on his statement was a factor in his favour. Nevertheless that statement was drafted in a somewhat convoluted way. It bore the hallmarks of the words of the draftsman of the statement rather than of E himself. Other factors which spoke against the statement included the following:

The solicitors had not followed the best practice standards which applied at that time concerning the use of client care letters and other matters.

The solicitors had not sought funding for the work under the Green Form Scheme. At the very least it was arguable that any costs exceeding Green Form costs would not have been reasonably incurred.

The agreement referred to in the witness statement concerned an agreement made in August 1997. There were no contemporaneous documents or attendance notes supporting an agreement of that kind.

The pre-legal aid costs were incurred in a five month period. The agreement referred to in the witness statement was dated 4 months into that period and only one month before the grant of legal aid. It was at least arguable that the agreement could refer only to future costs, not past costs.

If E was liable for his solicitor’s costs it was difficult to understand why he would not also be liable for counsel’s fees incurred in the same period. Substantial work had been undertaken by the late Mr Duffy QC and Mr Eike but neither of them had ever submitted fee notes for their pre legal aid work. It was suggested on behalf of E that counsel were normally willing to undertake a good deal of work for nothing in return for the enhanced fees they might later receive when briefed. In the learned Judge’s view this was not the way matters operate these days, certainly not in legal aid cases of this kind.

The challenge to the Master’s decision on this point and certain other points were dismissed. However, in respect of the Master’s refusal to award costs of objections legal aid only, the Judge directed that an additional sum be added to the final costs certificate. There was no order for the costs of the review before the Judge.