Boorman v Godfrey
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DONALDSON,LORD JUSTICE ACKNER |
| Judgment Date | 11 March 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0311-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 1981 |
| Docket Number | 81/0107 |
[1981] EWCA Civ J0311-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE LAMBETH COUNTY COURT
Royal Courts of Justice
Lord Justice Donaldson
Lord Justice Ackner
81/0107
Plaint No 7915929
MISS A. GREEN (for MR R. BEECROFT) (instructed by Daniel Davies & Co) appeared on behalf of the Appellant.
MR G. MURDOCH (instructed by Simanowitz & Brown) appeared on behalf of the Respondent.
This appeal concerns the position of an assisted litigant against whom an order for costs is made when his legal aid certificate is subject to limitations.
In November 1979 Mr Boorman began proceedings in the Lambeth county Court claiming the balance of the price of goods sold and delivered. He was met with a counterclaim which included a claim for an injunction restraining him from entering the Defendant's premises. There were a number of interlocutory "activities", to use a neutral term, but we are only concerned with two. The first was an application by the Defendant for an injunction and committal which was to be heard, and may well have been heard, on 1st July, 1980. How the making of the order could have been combined with committal, presumably for its breach, is not explained and does not matter. The second was an application by the Defendant for an order requiring the Plaintiff to deliver Further and Better Particulars of the Particulars of Claim. This application was made on 15th September 1980. It was successful and the Plaintiff was ordered to pay the Defendant's costs in any event.
I now turn to the legal aid situation. On 30th June 1980, the Plaintiff was granted legal aid under an emergency certificate in the following terms: "Description of legal aid—To continue to take proceedings in the Lambeth County Court Plaint number 79 15929 between Edward George Boorman, Plaintiff, and Maurice Godfrey, Defendant.
Conditions and limitations (if any)—Limited to representation on the Defendant's application for an Injunction and committal to be heard on the 1st July 1980".
This was superseded on 22nd July, 1980, by an ordinary certificate as follows: "Description of legal aid—To continue to take proceedings in the Lambeth County Court Plaint No. 79 15929 between Edward George Boorman, Plaintiff, and Maurice Godfrey, Defendant.
Conditions and limitations (if any)—Limited to representation on the Defendant's application for an Injunction and committal to be heard on the 1st July 1980. Thereafter limited to preparation of papers for Counsel and obtaining Counsel's Opinion on evidence, merits and quantum after a conference at which the Assisted Person should attend. Papers and Counsel's Opinion to be referred to the Area Committee for decision whether Certificate be amended or discharged".
When on 15th September, 1980, His Honour Judge McDonnell ordered the Plaintiff to pay the Defendant's costs of the application in relation to Particulars in any event, he had before him a letter from the Plaintiff's solicitors stating, as was the fact, that they represented the Plaintiff under a limited Civil Aid Certificate which would not cover them for that hearing and that for this reason they would not be attending.
On 23rd October, 1980, the Plaintiff applied to the learned Judge to amend the Order of 15th September, 1980, by adding a proviso that the Order should not be enforced unless there was a determination made under Section 8 of the Legal Aid Act, 1974. Both parties were represented by Counsel, Mr Beecroft appearing for the Plaintiff, and Mr Murdoch for the Defendant. The learned Judge rejected the application, holding on the authority of Mills—v—Mills (1963) Appeal Cases Page 329 and Herbert—v—Herbert (1964) 1 Weekly Law Reports 471that the Plaintiff had not been an assisted person quoad the application of 15th September. Unfortunately, he was not referred to Dugon—v—Williamson (1964) 1 Chancery 59, which like Mills—v—Mills is a decision of this Court. He thus escaped the problem of having to reconcile these two decisions. This task now falls to us on the Plaintiff's appeal from the learned Judge's refusal to amend his Order.
The key statutory provision is Section 8(1) of the Legal Aid Act, 1974, which is in the following terms: "8(1) Where a person receives legal aid in connection with any proceedings—(a) the expenses incurred in connection with the proceedings, so far as they would ordinarily be paid in the first instance by or on behalf of the solicitor acting for him, shall be so paid, except in the case of those paid direct from the legal aid fund as provided by Section 10 below; (b) his solicitor and Counsel shall not take any payment in respect of the legal aid except such payment as is directed by Section 10 below to be made out of the legal aid fund; (c) he may be required to make a contribution to the legal aid fund in respect of the sums payable out of that fund on his account; (d) any sums recovered by virtue of an Order or Agreement for costs made in his favour with respect to the proceedings shall be paid into the legal aid fund; (e) his liability by virtue of an Order for costs made against him with respect to the proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute".
In Mills—v—Mills (1963) Appeal Cases Page 329, 330, the legal aid certificate entitled the husband, "to be heard as respondent in the High Court of Justice, Probate, Divorce and Admiralty Division (Divorce) in proceedings entitled: Rhoda Jean Mills, Petitioner, and Thomas Leonard Lanty Mills, Respondent, in respect of the claim in the prayer of the Petition for alimony and maintenance, to include application to determine liability for costs". The appeal turned upon the construction of the 1949 Act, but there is no material difference between that Act and the 1974 Act. This Court held, to quote the headnote, that: "On its true construction 'proceedings' in Section 2(2) of the Legal Aid and Advice Act, 1949, had a narrower meaning than the whole of...
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...steps or stages. Limitations of that type had fallen for consideration in Dugon v WilliamsonELR([1964] Ch 59) and Boorman v GodfreyWLR ([1981] 1 WLR 1100). The plaintiff had argued that he was at all times, in the terminology of the 1988 Act "a legally assisted person" as defined in section......
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