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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Bridgewater v Griffiths [1999] EWHC B2 (QB) (29 April 1999) URL: http://www.bailii.org/ew/cases/EWHC/QB/1999/B2.html Cite as: [2000] 1 WLR 524, [1999] EWHC B2 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice
		Thursday 29 April 1999

Mr Justice Burton:

This is a review sought by the Defendant of the determination of a preliminary issue arising on the taxation by Taxing Master Campbell of the Plaintiff's bill of costs pursuant to a consent order of 26th September 1997 settling the action for personal injuries brought by the Plaintiff against the Defendant.

The hearing was held before me, for which I had the benefit of two experienced assessors, Taxing Master Rogers and Mr. Colin Jaque of Jaque Simmons Solicitors, on 5th March 1999. I indicated a provisional conclusion to the parties, and then gave the opportunity to both the Legal Aid Board and the Law Society to intervene and appear before me on an adjourned hearing upon terms that they would be responsible for the costs of both plaintiff and defendant of any such hearing. The Legal Aid Board took up that opportunity and I held a further hearing on 16th April, when I heard Counsel for the Legal Aid Board, Mr. Charles Utley, and further submissions from Mr. David Westcott for the plaintiff and Mr. Andrew Post for the defendant, and because of the significance of the issues I held that adjourned hearing, and will give judgment, in open court.

The problem put shortly is as follows. The Plaintiff was granted a Legal Aid Certificate number 03/01/89/09358V, issued on10th May 1989. It read as follows:-

"To take proceedings against Christopher Andrew Griffiths for damages for personal injuries and loss sustained on 25th October 1988."

Six days later, on 16th May 1989, the Plaintiff issued a writ, number 1989 B.No220, out of the Milton Keynes District Registry, claiming personal injury damages arising out of an accident on 25th October 1988 against the Defendant, and a copy of the Legal Aid Certificate was lodged in the Milton Keynes District Registry together with the writ. That writ was not served within its period of validity and in due course expired. A further writ in respect of the same cause of action and against the same Defendant was then issued out of the Queen's Bench Division of the High Court. That writ was numbered 1990 B.No. 10040. That writ was served, and the Plaintiff served notice that she was legally aided, relying once again on the same Legal Aid Certificate number 03/01/89/009385V.

That (second) action was then taken forward and substantial steps were taken and costs incurred. The certificate was amended on 23rd February 1990 to provide for a new nominated solicitor and again when she moved firms on 28th March 1992, and then on a further change of solicitor on 16th January 1996, when a limitation was imposed "limited to all steps up to but excluding setting down but including obtaining Counsels opinion on merits, quantum and evidence at that stage", which limitation was lifted to enable the matter to be set down on 27th September 1996, and again amended on 2nd October 1996. Eventually there was a consent order settling the action dated 26th September 1997, which provided for payment to the Plaintiff of £170,000 and further:-

"4. The Defendant pay the Plaintiff's costs of this action to be taxed on a standard basis failing agreement.

5. The Plaintiff's costs be taxed pursuant to Regulation 107 of the Civil Legal Aid (General) Regulations 1989."

A taxation of the Plaintiff's costs pursuant to the Consent Order was then to take place. It was however then discovered that, as set out above, the Legal Aid Certificate which, although amended from time to time, had remained fundamentally the same certificate, had been issued prior to the first Writ, without further or other certificate being issued prior to the second Writ, and the point was taken by the Defendant in the taxation that there was therefore no certificate providing legal aid for the second action, which was of course that in respect of which the vast bulk of the work was done. Reliance was placed upon Regulation 46(3) of the Civil Legal Aid (General) Regulations 1989 whereby:-

"A certificate shall not relate to more than one action, cause or matter"

except in certain irrelevant respects. Consequently the Defendant contended that there was, in respect of the second action, no entitlement of the Plaintiff's solicitors to payment on legal aid, and thus no liability of the Plaintiff to pay or entitlement of the Plaintiff's solicitors to recover any costs: thus, by virtue of the "indemnity principle", which requires that a successful party can only recover from an unsuccessful party costs which it is liable itself to pay, the Plaintiff was entitled to recover no costs over against the Defendant, notwithstanding the terms of the Consent Order. The result therefore, unjust and unexpected as it would seem, would be that, save in respect of some very small sums recoverable from the Legal Aid Fund under the certificate in respect of the first action, the Plaintiff's solicitors would not be able to recover from legal aid any payment in respect of the years of work carried out by three successive firms to bring the matter to a successful conclusion, and the Defendant, or rather his insurers, would have no liability to pay any costs whatever to the successful Plaintiff, even though they had expected to have to do so as a result of the Consent Order. Thus the plaintiff's solicitors (and Counsel) would receive no payment in respect of some £68,000 outstanding costs from the Legal Aid Board or from the defendant, and would actually be liable to reimburse the £50,000 already paid by the defendant's insurers on account of the apparent obligation under the Consent Order, and the defendant's insurers would thus achieve a windfall of some £118,000. In these circumstances Mr. Westcott and indeed Taxing Master Campbell, this court and even Utley for the Legal Aid Board have been seeking to suggest and/or find a way round the apparent injustice. But of course any such assistance can only be given within the confines of the legal structure, and always mindful of the impact upon other parties and other cases of a fudged decision intended to do apparent justice on the facts of one particular hard case.

The preliminary issue came before Taxing Master Campbell on 7th July 1998 and he accepted the proposition of the Defendant that the effect of Regulation 46(3) was that a legal aid certificate can only apply in respect of one action and that a plaintiff can only recover costs in respect of the action to which the legal aid certificate relates. However he found for the plaintiff, on the following basis. He concluded that

"The Regulation does not say to which action the certificate shall relate and in particular it does not say that this must be to the first action commenced in time and not the second. Therefore in my judgment, the Plaintiff can elect the proceedings to which the certificate relates. When the bill is taxed, I consider I can allow either the costs of the Milton Keynes action or of the Central Office action, not both. Since the costs incurred after the first Writ expired in 1990 are far greater than those incurred before, I see no reason why the Plaintiff cannot recover her costs from 1991 to 1997, provided she abandons her claim inter parties for the costs for the earlier period."

I do not see how this can be supported. As Mr. Post for the Defendant has pointed out, in his Application for Review of Taxation:

"In fact the plaintiff's solicitors were obliged to act pursuant to the legal aid certification; they had no authority to act on any other basis. Indeed, if .......... the Plaintiff's solicitors in fact had any such right to elect, there is no doubt that they in fact elected that the Legal Aid Certificate should relate to the first proceedings, not the second. When the proceedings were issued, the Plaintiff's solicitors notified the Court that the Plaintiff was legally aided by lodging with the Court a copy of the Legal Aid Certificate, and then issuing proceedings. If the Plaintiff's solicitors were not acting pursuant to a Legal Aid Certificate, they would have had no authority to issue those proceedings in any event. The Plaintiff was legally aided and they had no authority to act for her on any other basis, indeed Regulation 64 of the Civil Legal Aid (General) Regulations would have forbidden them, in effect, from acting for her other than by legal aid. The legal aid certificate cannot therefore have applied to the second action."

It seems plain that the certificate was (irrevocably) adopted, used and relied upon in the first action, and thus there cannot be a subsequent "election" to use it instead in the second action. Mr. Westcott in his further submissions on the adjourned hearing submitted that there was no adoption of the certificate for the first action, or irrevocable election in that regard, unless and until there was what he called a funding element, but I cannot accept that:-

(i) The plaintiff's then solicitors were plainly acting under the certificate when they did work on the first action (and lodged such certificate at court with the writ in that action)

(ii) There was a liability to pay, and entitlement to recover costs which arose as soon as the plaintiff's solicitors began work on the first action with the benefit of the certificate, so that there was, if such be necessary, a "funding element".

The Plaintiff sought however to support the learned Taxing Master's decision on a number of different bases, and I shall deal with each. The first three were as follows:-

(1.) that the Defendant has agreed unconditionally to pay the Plaintiff's costs by the consent order ("Agreement")

(2.) that the Defendant is estopped by convention from denying that the Plaintiff was legally aided, and must accordingly pay up as if she were ("Estoppel")

(3.) that if there were no contract for services between the Plaintiff and her solicitors on a legal aid basis, because of the absence of a certificate, then the contract was voidable (and has presumably been avoided) for mutual mistake, and her solicitors are then entitled to payment upon a quantum meruit; hence there is an obligation by the Plaintiff to pay her solicitors in respect of their services, which obligation is to be indemnified by the Defendant ("Quantum meruit")

I shall take each of these in turn.

(1) Agreement. It is submitted that there was an agreement between the Plaintiff and Defendant that the Defendant would pay the Plaintiff's costs, irrespective of whether the Defendant was legally aided or not. It is said by Mr. Westcott of Counsel on behalf of the Plaintiff that the Defendant is precluded by contractual obligation from contending that no costs are payable.

But there are two answers to this contention:-

(a) There is nothing special about this Consent Order. No implication or special understanding is suggested to be read into it. I do not consider that arising out of this perfectly ordinary consent order there is any agreement that the Defendant should pay the Plaintiff's costs even if the Plaintiff is not liable to pay any to her solicitors.

(b) But in any event any such agreement would offend against the indemnity principle (Gundry v Sainsbury [1910] 1 KB 645).

(2.) Estoppel. What is submitted by Mr. Westcott is that the Plaintiff and Defendant at all times (up to and including the consent order) assumed that the Plaintiff was legally aided, so that it is now impossible for the Defendant to deny the fact. Mr. Westcott asserts that both parties made the mistaken assumption that for the purposes, and from the inception, of the second action, the Plaintiff was legally aided, that the parties litigated (and eventually settled) the second set of proceedings on the assumption that the Plaintiff's action was legally aided and the Defendant would indemnify the Plaintiff's liabilities to the Legal Aid Board in the event that she was successful in her claim, and that accordingly by virtue of the estoppel by convention established on the facts the Defendant should be prevented from asserting that the Plaintiff is not legally aided, and the taxation should proceed as if she were.

Again there are answers to this contention:-

(a) If there were "deemed" legal aid as between plaintiff and defendant when there is not in fact legal aid as between the plaintiff and her solicitor and the Legal Aid Board, there would again be a breach of (or there would need to be a fresh exception to) the indemnity principle, but:-

(b) I do not consider that there is an estoppel by convention. It is not enough to establish an estoppel by convention that both parties assume - as e.g. in this case - that the plaintiff was legally aided. What is said to be necessary is that the mistaken assumption must itself be communicated by the one party to the other, the other party must acquiesce to the knowledge of the other in the facts so communicated and both parties must conduct themselves on the basis of such a shared assumption. See Chitty on Contracts (27th Edition) Vol 1. 3 - 081 and cases therein cited. Mr. Westcott submitted that the passage in Chitty is not entirely accurate and that the true analysis is that either acquiescence (i.e. knowledge of the falsity of the assumption without demurring from it) or conduct on the basis of it would be sufficient to establish the equity required to prevent one party "going back on" the underlying assumption. But he accepts that conduct by the parties of itself is not sufficient, but it must be such conduct as raises an equity. Mr. Post for the defendant emphasised that there must not only be a shared assumption, but the conscience of the party to be estopped must be affected so that it would be inequitable for him to go back on the convention. Here there was, he submitted, no such unconscionable conduct, the defendant knew of no mistake or indeed of any possible challenge to the legal aid, and was simply told by the plaintiff that there was legal aid, nor was there any act by the plaintiff in reliance upon the sharing of the assumption - indeed the only act was by the defendant, namely the payment on account of £50,000 in reliance upon there being a legal aid certificate, as the defendant's solicitors had been led to believe there was by the plaintiff's.

Mr. Post submitted that there were four reasons why the estoppel by convention could not work: (i) no acquiescence (ii) no affecting of the defendant's conscience (iii) the estoppel is being used as a sword not a shield (referring e.g. to Russell Bros (Paddington) v John Elliott Management Ltd [1995] 11 Const. L.J. 377) and (iv) the uncertain effect of the estoppel.

I do not agree with point (iii): the defendant was taking the "no indemnity point" as a defence to the costs obligation pursuant to the consent order and there was in response said to be an estoppel - a plain shield. But his point (iv) certainly emphasises an additional problem in the creation and formulation of an alleged estoppel by convention. If there is "deemed" legal aid, then on what terms? What certificate, what conditions and what limitation, if any? On the facts of this case, of course, it would be said that the certificate would be on the same terms as that which was in fact in effect in respect of the first action, if such it was; but if the estoppel argument is to work at all, then (because it is not said to arise as a result of any particular circumstances other than the shared belief of both parties that there was in fact legal aid, which might well arise in a quite different set of circumstances), it must be apt in all circumstances and it cannot be left so uncertain.

But his points (i) and certainly (ii) seem to me to be a complete answer, and there is no such equity as Mr. Westcott himself accepts must arise. Mr. Westcott accepts that the equity cannot arise simply by virtue of the fact that there was a windfall for the defendant, but he couples with that the fact that had the position been clarified or exposed earlier, something different would have occurred - the Legal Aid would have been regularised, at least prospectively, or the plaintiff's solicitors would have ceased to act. However:-

(a) It seems to me that the Court of Appeal decision of Lokumal and Sons v Lotte Shipping Co Pty Limited [1985] 2 Lloyds 28 (the "August Leonhardt") is very much in point here, where an estoppel on the facts of that case was found not to arise (see particularly at pages 34-35). Although the facts of that case were different, it is noteworthy that there was simply found to be an "unfortunate misunderstanding". That was a case where an estoppel by representation alternatively convention was said to have arisen as a result of something said or done by the representor, acted upon by the representee who then claimed the benefit of the estoppel. The position in this case was that there was a representation by the plaintiff to the defendant that she was legally aided, i.e. the erroneous information was imparted by the representation of the plaintiff, and it is the representor who now seeks the benefit of the estoppel. The erroneous assumption was only shared as a result of its being imparted by the plaintiff, and the defendant did not know of the existence of the error, not took any action upon which the plaintiff could have relied to his detriment so as to estop the defendant from resiling from the shared assumption.

(b) There was no affecting of the defendant's conscience and no equity. Mr. Westcott rightly accepted that the mere existence of the windfall was insufficient. I cannot see that it is conceivably enough to raise an equity against the defendant to assert that something different might have happened if the error had been discovered earlier, without at least adding the assertion, not available in this case, that a duty, or at least an opportunity, lay with the defendant to correct or discover the error. In any event it is far from clear to me that there was anything that could have been done. A Legal Aid Certificate could not have been granted retrospectively (see Greenwood v Sketcher [1951] 1 AER 750, Lacey v W Silk & Son Limited [1951] 2 AER 128, Ward & Mills (no.2) [1953] 1 WLR 917, Wallace v Freeman Heating Company Limited [1955] 1 WLR 172); and it does not help to suggest that the plaintiff's solicitors might have stopped acting, because, although that would or might have saved further expenditure of costs, it would have meant that the plaintiff would not have received, and the defendant would not have had to have paid, the moneys she eventually achieved in the settlement.

I conclude that the Estoppel argument does not avail the plaintiff, any more than the Agreement argument.

(3.) Quantum meruit. If there was not legal aid, then there was, in my judgment, no entitlement of the plaintiff's solicitors to be paid by the plaintiff. Mr. Westcott relied upon citation from Goff and Jones The Law of Restitution (4th Edition) at pages 22-26 as supporting the relatively novel concept of a principle of "incontrovertible benefit", but it is also necessary to look at the earlier passages in Goff and Jones (pages 18-22) in relation to the principle of "free acceptance". It is not in my judgment the case that there is any understanding or belief by a client who is granted, as he believes, legal aid, that he is personally liable to pay that solicitor in respect of his services if for some reason, a fortiori the error of his solicitor, there is no legal aid to pay the solicitor. Though there would always be the possibility that such client might have, if otherwise successful, to pay any shortfall as between solicitor and own client and party and party taxation, this is, I am informed, likely to be a maximum of 10% of the total costs, and he would not in my judgment at all expect to be liable to pay the whole of the costs of a solicitor whose services were being provided to him on legal aid. It is no answer, in my view, but simply a circuity, to say that such a client would be in a position to pay his solicitor if he succeeded in recovering costs from the opposing party, because this would simply be a breach of the indemnity principle. Whatever inroads there now are into that indemnity principle as a result of express agreements between solicitor and his client such as are referred to in Thai Trading Co. v Taylor [1998] QB 781, (which itself has been subsequently doubted), I do not consider that there is, at any rate yet, and certainly was not in this case between 1989 and 1997, any kind of implication, in what was otherwise a legal aid arrangement, that the client would be liable to his solicitor to make payment in respect of his costs in the event of their being no legal aid but only in the event that he should be successful in recovering his costs against the opposite party: or put another way I do not consider that the plaintiff "freely accepted" the defendant's service on that basis. Taxing Master Rogers, as Assessor, kindly drew the Court's attention to Byrne v Kunkel and Kunkel [1999] 1 Current Law 349 in which, in a somewhat similar case, (where an action was pursued to trial with all parties acting on the wrong assumption that the plaintiff was legally aided, when in fact there was no legal aid certificate, and, costs having been awarded to the plaintiff, the defendant took a similar point to the present) HHJ Cornwell, sitting at the Central London County Court with assessors, in allowing a review from the District Judge, who had found a breach of the indemnity principle, concluded, according to that short report that:-

"A party is presumed to be liable for his costs until proved otherwise and neither the plaintiff nor the defendants had discharged the burden upon them to prove the existence of an express or implied agreement between the plaintiff and his former solicitors that he would never have to pay their costs in any circumstances .......................... In the absence of such an agreement the mere lack of legal aid did not mean there was a breach of the indemnity principle."

I cannot accept the learned Judge's conclusion, which Mr. Westcott did not in any event seek to support. There surely cannot be a question, in a legal aid, or presumed legal aid, situation, that there has to be proved the existence of an express or implied agreement that the legally aided plaintiff would never have himself to pay his solicitor's costs (save any shortfall as referred to above): the burden must surely be exactly the reverse, namely that there would have to be established an express or implied agreement, or at any rate a quasi-contractual obligation upon such a client, that he would be personally liable to pay his solicitor in some unforeseen situation, and, as I have indicated, I am entirely satisfied that no such contract or obligation is here established.

However in the adjourned hearing Mr. Westcott made it clear that this was not his submission. His proposition was as follows: "The unjust enrichment of the plaintiff by a determination that there was no liability upon her to pay would derive from the fact that she had obtained an incontrovertible benefit (£170,000) by virtue of professional services which she knew were being rendered in the expectation of payment (albeit that the plain understanding was that they would be paid for not by the plaintiff but by a third party)". Mr. Westcott accepts that this is a novel proposition, not supported by any authority. It is in essence as follows. In a case where a party (A) expects or hopes to receive a benefit as a result of the services of another party (B) for which A does not expect and has no intention to pay, but which both A and B expect and intend will be paid for by a third party C (in this case the Legal Aid Board), if A obtains that benefit as a result of B's services but B is not paid by C, then A cannot keep the benefit without paying B for it. This is a bold proposition. It is the bolder in this case for the fact that it was B's fault that he was not paid (because he did not have the right certificate); but that, says Mr. Westcott, does not affect the general proposition, and would be dealt with by there being a counter-claim by the plaintiff (A) against her solicitor (B) for damages for negligence or breach of contract. Although this counterclaim would be set off against, and thus extinguish, the plaintiff's liability to her solicitor under the quasi-contractual obligation which is said otherwise to arise by virtue of the receipt of the incontrovertible benefit, he submitted that the existence of such obligation is sufficient to satisfy the indemnity principle. This is ingenious. There is the difficulty that the so-called negligence set-off may actually prevent the so-called obligation arising at all. But, irrespective of that, although it may be that such a quasi-contractual remedy may be found to exist by a higher court, I conclude that, on the state of the law as it is at present, no such quasi-contractual obligation arises where A does not expect in any circumstances to have to pay for the benefit supplied to him by B, simply because B is not paid by C.

Hence I reject all three of Mr. Westcott's further submissions. However a further proposition was put forward by my other assessor, Mr. Jaque, and was adopted by Mr. Westcott as an additional submission to his original four, namely that which had found favour with Taxing Master Campbell and his other three submissions, with which I have now dealt. It may be that this alternative contention was what Taxing Master Campbell had in mind as a possibility in the last paragraph of his judgment, to which I need not now refer. The proposition is that Regulation 46(3) as purposively construed does not in fact in any appropriate case prevent a certificate applying to more than one action, and, although Mr. Westcott conceded the contrary in his skeleton argument, I allowed him to withdraw that concession in adopting, as he did, Mr. Jaque's proposition. As set out above, what is provided by Regulation 46(3), with the irrelevant exceptions, is that "a certificate shall not relate to more than one action, cause or matter". At the end of the first hearing I indicated my provisional view that I was in Mr. Westcott's favour in respect of this proposition, but, as I have sated, I have now heard further submissions, and in particular the valuable contribution from Mr. Utley on behalf of the Legal Aid Board. I summarise the position at the conclusion of that first hearing:-

1. The standard form of legal aid certificate, naturally followed in this case, authorises the taking of "proceedings" against a named party as proposed defendant, usually, if not invariably, for a named cause of action. The proposition is that this would authorise a second action/writ against such named party, provided that the proceedings continued to be for the same cause of action against the same party. It is not intended, nor would it be the effect of this proposition, to authorise within the construction of Regulation 46(3) proceedings, or, insofar as permitted by the construction, a second action, against any other defendant than the one named in such certificate.
2. The reference in Regulation 64 ("where a certificate has been issued in connection with any proceedings, the assisted person's solicitor or counsel shall not receive or be party to the making of any payment for work done in those proceedings......except such payments as may be made out of the fund") and in Regulation 70 ("such information regarding the progress and disposal of the proceedings to which the certificate relates as the Area Director may from time to time require") the reference is in each case to "proceedings" and not to an action.
3. Reliance was placed by Mr. Post on behalf of the defendant on Section 151 of the Supreme Court Act 1981, being the definition section in what he submits to be similar legislation to the legal aid regulations. That section defines, for the purposes of the 1981 Act, an action as "any civil proceedings commenced by writ or in any other manner prescribed by rules of court". It defines "cause" as meaning "any action or any criminal proceedings" and "matter" as meaning "any proceedings in court not in a cause". Therefore if the definitions for the 1981 Act apply in Regulation 46(3), then "matter" is irrelevant, "action" is described as meaning "proceedings" and "cause" simply means either a civil action or criminal proceedings. It must of course however be emphasised both that Section 151 is a definition section in a different Act, and that there is no use in the 1981 Act of the wording, as in Regulation 46(3), "action, cause or matter".
4. It was pointed out on behalf of the defendant that if Regulation 46(3) is to be construed so that a certificate can apply to more than one action, there would or might be a lacuna in the Regulations, because there is no provision for a requirement upon solicitors or counsel to report to the Legal Aid Board if e.g. (within the overall confine of a certificate permitting "proceedings") one writ can be struck out for want of prosecution or as frivolous and vexatious or as statute barred and yet, without a further certificate, a fresh second writ can be issued. However, if this be so, then such lacuna could easily be filled, and although Mr. Utley at the adjourned hearing contended that Regulation 46(3) was intended to avoid the uncertainties of reporting, he did not suggest that there was not a general obligation to report which would be likely to be triggered in such a situation, arising out of one or more of Regulations 66, 66A, 67 and/or 70.
5. Mr. Post submitted that if within Regulation 46(3) "cause" was to be construed as meaning proceedings and to include action, but to postulate the possibility of more than one action in the same cause, then the wording is superfluous, for the word action need never have been used. That may be so but in the light of Mr. Westcott's submissions I formed the preliminary view as follows:-

(i) There could and should be a purposive construction of the Regulation to accord with the intention that "proceedings" were to be covered which might consist of more than one action, in the light of the wording of the certificates which have been used with the Regulations, and the wording of Regulations 64 and 70 referred to above.

(ii) The statutory wording could be read without undue strain as meaning: "only one action, except that ("or") it is subject to the overriding provision that there must be no more than one cause". This provided a perfectly sensible meaning to the use of the word "cause" as meaning 'proceedings' or 'lis'.

(iii) I was persuaded by Mr. Westcott's submission that, even on Mr. Post's construction of treating the relevant definition as that in Section 151, the word "cause" would include an action and as any reference to criminal proceedings, which is the only other meaning indicated by Section 151, fell to be disregarded as irrelevant for the purposes of the Civil Legal Aid (General) Regulations, so on the defendant's interpretation the word "cause" (or the word "action") would be superfluous, as both meant the same. Consequently I was left to choose between interpreting Regulation 46(3) as meaning either (because "cause" and "action" would thus be interchangeable) that "a certificate shall not relate to more than one action, [action] or matter" or that "a certificate shall not relate to more than one action, except that it may do so provided that there is not more than one cause [i.e. proceedings or a lis, in respect of which the certificate has been issued against a particular defendant] or matter". Albeit that in neither case was the wording straightforward, it appearing that duplication was the fault in the former, and straining of language the fault in the latter, I was in favour of the latter.

However, at the end of the adjourned hearing, notwithstanding the further submissions of Mr. Westcott, I am persuaded by the submissions of Mr. Utley, with which Mr. Post associated himself, that my provisional view was wrong:-

6. ) With regard to the meaning of the word "proceedings" in the context of the Legal Aid Regulations, I was taken by Mr. Utley to the very helpful and relevant authorities of Hanlon v The Law Society [1981] AC 124 and Littaur v Steggles Palmer [1986] 1 WLR 287. It is clear that "proceedings" in the context of the usual form of the certificates, and indeed of Regulations 64 and 70, means the particular legal application which is to be before the Court and which is covered by the particular Legal Aid Certificate. These "proceedings" can be, and were in those cases, something less than the full action e.g. there can be legal aid granted for a particular application within an action, such as an application for contempt. The proceedings which are thus governed by the certificate, and in respect of which there are then reporting obligations, are defined by the certificate, but in no way affect the interpretation of Regulation 46(3), which is an over-arching obligation, however construed, limiting the issue of a certificate, and, upon Mr. Utley's construction, which I accept, meaning that whereas a certificate can authorise any number or nature of proceedings, it cannot do so in more than one action.
7. ) My attention was drawn by Mr. Utley to Regulation 51(b)(iii) which reads in material part as follows:-

"The Area Director may amend the certificate where in his opinion........ it has become desirable for the certificate to extend to................, subject to Regulation 46(3), other proceedings".

The existence of this Regulation obviously supports the proposition in 1) above, but in particular emphasises the over-arching nature of Regulation 46(3), however it is to be construed, and shows that it is intended expressly to be a limiting factor upon what can otherwise be put in a certificate. Further, plainly what cannot be done by amendment cannot be done by implication.

8. ) Crucially, I was persuaded that there is no duplication in the use of the word "cause" in Regulation 46(3), but it serves a perfectly valid purpose. Mr. Utley pointed out that whereas by Part V of the Legal Aid Act 1988, headed up "Criminal Legal Aid", provision is made for legal aid in respect of criminal proceedings before a Magistrates court, Crown court, the Criminal division of the Court of Appeal etc., there is no provision made in respect of the High Court, such that the grant of legal aid with regard to, for example, a case stated from a Magistrates court to the Divisional court, or in respect no doubt of extradition proceedings by way of application for habeas corpus to the Divisional court, and onward on appeal to the House of Lords, is dealt with under Part IV of the 1988 Act, headed up "Civil Legal Aid". Thus the Civil Legal Aid (General) Regulations 1989, with which we are concerned, are the relevant Regulations applicable to legal aid granted in such a criminal matter, and hence there is a justification for the use of the word "cause", to include not just a civil action but also such a criminal proceeding. Mr. Westcott accepts that legal aid in respect of such matters is indeed covered by such Regulations, but he asserts that by virtue of their inclusion not in Part V but in Part IV, and thus in these Regulations, such proceedings are not criminal proceedings but civil proceedings, and hence would fall within the rubric "matter", as opposed to "action", still leaving no room for any purpose in the use of the word "cause" as being dedicated to "criminal proceedings". I am however satisfied that legal aid in respect of such matters is indeed in respect of "criminal proceedings", albeit that they fall not within Part V but within Part IV under the heading "Civil Proceedings"; they are certainly treated as criminal proceedings for all other purposes, such as the need in appropriate cases for a certificate of a point of law of general public importance and/or of a direct appeal from the Divisional court to the House of Lords (see generally RSC O56, O57/1/8 and the Administration of Justice Act 1960 Sections 1 and 15). In any event even if such matters are not, as I consider they are, criminal proceedings, nevertheless the draftsmen of Regulation 46(3) would be entitled to include the word "cause" as well as "action" and "matter", to cover such proceedings, even if they are strictly not to be defined as criminal proceedings, in case they were not otherwise covered.

Consequently I revisit the "strained construction" and conclude that it is indeed strained and would result in a conclusion, from otherwise straightforward words, that there can be more than one action, notwithstanding the opening words that "A Certificate shall not relate to more than one action", provided that there is only one cause of action (or perhaps provided that the second action does not contain any more causes of action (or against any other defendants) than are already covered by an existing certificate issued in the context of a first action). As Mr. Post put it in his skeleton for the purpose of the adjourned hearing: "This construction would serve to elevate "cause", a word placed in the middle of a list of three similar words, to a predominant position governing the other two, which is an unnatural use of the English language.". However, as I am now satisfied that there is no duplication, there is no call to address the strain. Further I am entirely satisfied not only that there is a straightforward construction, but also that, even adopting a purposive attitude, on the one hand there is not the need which I had previously considered there to be to allow for the apparent inconsistency of the use of the word "proceedings", to which I have referred above, and on the other hand there is a purpose, namely that of controlling expenditure more strictly than by leaving it to the obligation to report. Mr. Post is right when he says in his further skeleton: "The proposed construction is not, in truth, a purposive one, because the literal meaning of Regulation 46(3) is plainly in accordance with the purpose of the Regulation. The only purpose the proposed construction would serve is the purpose of preventing the plaintiff's solicitors suffering loss."

With great reluctance, therefore, I am driven to reject all of Mr. Westcott's submissions, notwithstanding the sympathy of the court and the desire to assist to avoid apparent injustice which I have mentioned. It remains to record the following in that context:-

(1.) It is to be hoped that the Legal Aid Board may be prepared to consider an ex gratia payment.

(2.) The important consequence of this, reflected in the fact that I have chosen to deliver this judgment in open court, is to seek to avoid this problem ever recurring. It appears to have arisen because the plaintiff's new solicitors, as transferees of instructions in the plaintiff's action, which they believed to be covered by legal aid, had (or, more properly, there not yet being evidence specifically dealing with this point, are asserted, and are assumed for these purposes, to have had) no knowledge, nor means of knowing, that there was a first action, a fortiori that the certificate, which they believed to relate to the apparently legally aided action which they were inheriting, did not relate to that action but to an (unknown) earlier one. Any and all help that can be given to avoid such a situation in future should now be given. It would seem to me to include:-

(a) The inclusion of an additional box in the form of Legal Aid Certificate, providing for the insertion of the action number in question. In some cases legal aid will be granted after the issue of a writ, so that the Legal Aid Board itself can inset in such a box (and I am instructed very often do, even under the present system, insert in the narrative) a reference to such existing proceedings. However in the vast majority of cases I would assume the legal aid would be granted in anticipation of the issue of proceedings not yet issued. In those circumstances, if there be a box to be completed on receipt by the solicitor after the issue of such proceedings, and before the lodgement of the certificate with the court and/or its service upon the opposing solicitors, the requirement for such completion can only be assured by the imposition of some duty by regulation or otherwise, or at any rate by the issue of appropriate guidelines and warnings, so that the receipt by the court, by an opposing party or by a transferee solicitor of a certificate uncompleted in this respect would put such a recipient on immediate notice.

(b) Irrespective of the alteration of the certificate in this regard, there should in my view, and my assessors firmly agree with me, be some direction, by way of fresh regulation or otherwise, or at the very least guidelines to solicitors so that transferors and transferees of instructions in apparently legally aided proceedings should both have obligations and have means of knowledge, so that it can be understood whether there has been any prior action and/or whether the certificate in question does indeed relate to the transferred proceedings.

It may be that, particularly in the context of reconsideration of the whole question of legal aid, there will be reconsideration as to whether Regulation 46(3) is necessary or appropriate, especially given the kind of problems that have been canvassed to me, as to unnecessary and expensive paperwork and procedures, and the occasions where more than one writ e.g. in respect of continuing breaches, may be appropriate, and perfectly sensibly covered by an existing certificate were it not for the stringent effect, as now interpreted, of Regulation 46(3). But, subject to any such change, and to any consideration of this application by a higher court, the publication of this judgment at least hopefully should bring to the attention of the legal profession the proper construction of Regulation 46(3) and the need for a fresh certificate in respect of each action. However this is of itself insufficient if there were, inadvertently or otherwise, to be non-compliance with the Regulation, without some kind of precautions to protect transferee solicitors, and enable them to discover the true position, which they might not otherwise know, and indeed of which their client might have no knowledge or understanding, and hence my recommendation of the further precautions discussed above.

(3.) The suggestion which Mr. Utley made in the course of his submissions, intended to indicate that there might still be a way out for the plaintiff and her solicitors even if, as they subsequently were, his submissions were successful, is one which remains for further consideration by the plaintiff. The point he made was that if indeed, as has been assumed for this purpose, the plaintiff's last solicitors had no knowledge of the existence of the first action, then it may be that there was a warranty and/or negligent misrepresentation to them by the plaintiff through the agency of her previous solicitors which may either create a quasi-contractual obligation of the plaintiff to pay fees, or found at any rate a claim for damages which may be capable of being passed on by the plaintiff to the original solicitors. They may involve a further preliminary point before Taxing Master Campbell, with the benefit of further evidence, and/or the issue of separate proceedings brought in the first instance by the plaintiff's solicitors themselves. The availability of this route, albeit potentially time-consuming and expensive, may on the one hand lend comfort to the plaintiff and/or her solicitors and on the other hand cause the defendant's insurers pause for thought before taking advantage, as they otherwise are entitled to do, of what has been described as this substantial windfall.

Accordingly, for these reasons, and with the sympathy for the plaintiff and her solicitors and Counsel which I have expressed, I allow the appeal against Taxing Master Campbell's order and resolve the preliminary point against the plaintiff, but I do not at this stage, with the consent of all parties, dispose of the taxation proceedings, in case there may be any further application either to Taxing Master Campbell or indeed back to this court, with further evidence, relating to the point mentioned in (3) above which the parties accept has not been dealt with by me in this judgment, and in respect of which Mr. Post has conceded that there could be no issue estoppel arising from this judgment.

For the reasons which were fully canvassed in court both after the first hearing and the adjourned hearing, I order that there should be no order for costs in respect of the first hearing and that the Legal Aid Board should comply with the condition I imposed, referred to by me above, that they pay the costs of both plaintiff and defendant, assessed in the sum of £1000 + VAT each, in respect of the adjourned hearing.