Arthur J S Hall & Company (Respondent/Plaintiff) v Melvyn Keith Simons
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE MORRITT |
| Judgment Date | 14 December 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1214-14 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF 97/1569/2 |
| Date | 14 December 1998 |
[1998] EWCA Civ J1214-14
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill)
Lord Justice Morritt
and
Lord Justice Waller
CCRTF 97/1569/2
FCR 98/7409/1 & QBENI 98/0109/1
FR3 98/7344/1 & QBENI 98/0157/1
FC3 98/7279/1 & QBENI 98/0746/1
APPEARANCES:
MR RUPERT JACKSON QC, MR NORMAN WRIGHT and MISS SIAN MIRCHANDANI (instructed by Messrs Weightmans, Liverpool L3 9QW) appeared on behalf of THE RESPONDENT
MR ANDREW EDIS QC and MR W EDIS (14.12.98) (instructed by Messrs Hill Dickinson, Liverpool L2 9XL) appeared on behalf of THE APPELLANT
MR MARTIN POINTER QC and MR STEPHEN TROWELL (instructed by Messrs Cooper Whiteman, London WC1N 2PL) appeared on behalf of THE APPELLANT
LORD MESTON QC and MR RUPERT JACKSON QC (instructed by Messrs Reynolds Porter Chamberlain, London WC1V 7HA) appeared on behalf of THE RESPONDENT/APPLICANT
THE APPELLANT appeared in person
MR RUPERT JACKSON QC and MR CHRISTOPHER CHRITCHLOW (instructed by Messrs Wansbroughs Willey Hargrave, Leeds LS1 2LW) appeared on behalf of THE RESPONDENT/APPLICANT
MR PETER DUCKWORTH and MR NICHOLAS BOWEN (instructed by Messrs Stephens & Scown, Exeter EX1 1RS) appeared on behalf of THE RESPONDENT
MR RUPERT JACKSON QC and MR JEFFREY BACON (instructed by Messrs Bond Pearce, Exeter EX1 1LA) appeared on behalf of THE APPELLANT
Monday 14 December 1998
MR EDIS: May it please you, my Lord, in the matter of Hall v Simons, I appear for Mr Simons today, and I would ask for my costs of the appeal before your Lordships, together with a legal aid taxation of those costs, and I would also ask for costs of the preliminary issue below.
It may be convenient to take these one by one. Who is your opponent?
My Lord, I stand in for Mr Jackson on all appeals on this side, with Miss Mirchandani standing in as junior counsel in respect of all matters. My Lord, perhaps it will shorten matters if I say that it is not my intention to resist applications for costs, subject to the normal rule applying: that those costs should not be taxed or paid in any single case before final determination of litigation, either by trial of the substantive issue or by further appeal.
I am not sure which cases involve legal aid taxation. It evidently does in Hall v Simons.
My Lord, yes. I think they all do, save in the case of Mr Barratt who has been legally aided in respect of part of the proceedings.
There still needs to be a legal aid taxation, and Mr Cockbone has been acting in person.
Yes.
Very well. I understand that there is no resistance to orders for costs in favour of the successful individuals in each appeal. There will be a legal aid taxation so far as relevant in the case of Hall v Simons, Barratt v Woolf Seddon and Harris v Scholfield. Is there any resistance to Lord Meston's application that the costs should not be the subject of—did you say of taxation or payment?
My Lord, what I am submitting is that the normal rule, which is Order 62, rule 8, should apply, that the costs of any proceedings shall not be taxed until the proceedings of the cause or matter in which the proceedings arise. In each of these cases, even if the matter were not to go further on appeal, in each of these cases there will of course be a trial now as a result of your Lordships' decision and the question then of set-off for costs and so forth may arise. That is the thinking behind the normal rule which I have just cited.
Yes. Is there any resistance to that application on Lord Meston's part?
MR EDIS: My Lord, on behalf of Mr Simons there is no resistance to that. One would normally have a taxation of a discrete issue as soon as it became dispensed with, and I know not how the Legal Aid Board deals with taxation and delay in asking for taxation, but so far as Mr Simons' own interests are concerned, he does not resist that.
What about the other individuals?
MR POINTER: My Lord, so far as Mr Barratt is concerned, as to the order itself, could I just mention that the order should be for costs both of the appeal and below?
Yes.
MR POINTER: There seems, may I suggest, no particular reason why there should not be a taxation of costs involved in the strike-out application and the appeal, even if questions of payment be deferred until final determination of the case. The object, as I understand it, of my learned friend in raising this point is so that if there were to be a taxation and the costs were to be paid, then they would have to go through a process of recovery if they were going to succeed in the final proceedings.
Are you talking about legal aid taxation or taxation otherwise?
MR POINTER: It becomes slightly complicated. I am really talking about inter partes taxation, my Lord. Mine being a recent certificate, it would be taxed on a private basis. There is no reason why the taxation should not take place.
Who are you representing?
MR POINTER: Mr Barratt.
Only Mr Barratt?
MR POINTER: Only Mr Barratt.
Mr Cockbone, you would probably abide by the order made in the other cases, would you?
MR COCKBONE: Well, I have brought a little speech…. My Lord, I prefer the taxation for this case.
To take place now even if there is no payment?
MR COCKBONE: Yes.
Well, that is a very clear submission. Mr Duckworth, what do you say?
MR DUCKWORTH: My Lord, I have no observations. The order for taxation, which I take to have been made today, accrues for the benefit of those who represented Mrs Harris in terms of payments on account. My Lord, I cannot think of any other dimension where she needs her costs to be paid now—or rather that the Legal Aid Board need their costs to be paid now rather than at the end of the case.
Lord Meston, the point appears to be: is there a virtue in having the taxation in any event, even if there is no payment?
My Lord, I think the position is that there is no great virtue in having a taxation now if there is going to be no payment now.
I think there has to be a legal aid taxation now.
I am so sorry, there has to be a legal aid taxation.
And my Lord makes the potent point to me: if there is going to be a legal aid taxation, why not let the same taxing master do the whole thing?
My Lord, I see the force of that in the case of the legally aided parties. My Lord, I think therefore my application is limited to saying that there should be no payment pending determination.
I think, if three of the cases are being taxed for legal aid purposes, that it would be foolish and uneconomical for Mr Cockbone's costs not to be taxed at the same time because they are so intimately interlinked, at any rate at this moment.
My Lord, I think the concern is always that if at the end of the proceedings there are set-offs to be considered in terms of costs—
I do not think anybody is resisting your submission that no money should actually cross the divide at this point.
Then, my Lord, in that case I do not pursue the matter further. I would invite your Lordship so to direct.
Very well. In all the cases we shall order that there be a taxation and legal aid taxation, as the case may be, but that there be no payment under any such order pending the final outcome of the proceedings. I think, Lord Meston, that it would be very helpful if you and your opponents could formalise the order in all four cases to make sure that it covers everything. It is going to be quite a complicated order. Would you, with the assistance of your learned junior, Mr Pointer, and those sitting behind you, put your heads together at the end of this and let the associate have a draft?
Of course, my Lord.
Thank you.
Can I finally, in respect of all of these matters, invite the court to consider leave to appeal to the House of Lords?
Yes.
My Lord, I think it goes without saying that the outcome of these appeals has been of considerable importance to practitioners and their insurers and, indeed, looking at it from the other point of view, of importance to the consumers of legal services.
Yes.
The result of the decision of this court is that inevitably it is going to be less easy to strike out an action without incurring the costs of preparing for trial.
Lord Meston, I think I can perhaps assist you to this extent. My Lords and I have had some discussion in anticipation that you would make this applicationion—it does not come as a total surprise. I can tell you, subject to anything that anybody may say in resistance, that this does seem to us a matter that deserves the consideration of the House of Lords. What we are concerned about is how this is best stage-managed.
My Lord, yes.
And two possible ways of handling that problem occur to us. One is to refuse leave...
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