Francis v Francis and Dickerson
| Jurisdiction | England & Wales |
| Date | 1955 |
| Year | 1955 |
| Court | Probate, Divorce and Admiralty Division |
Legal Aid - Costs - Taxation - Duty of solicitor incurring costs - Attitude to be adopted by taxing officer - Divorce - Inquiries as to adultery - No specific charge of adultery -
One of the fundamental principles upon which the legal aid system is based is that the assisted person, his solicitor and his counsel have the same freedom in the conduct of an assisted case, and are entitled to the benefit of the same relationships, as in a similar matter where the lay client is not an assisted person. The primary duty of a solicitor in conducting an assisted case is to his client; and the problem of incurring reasonable expense to attain justice is to be approached by solicitor and counsel in the same way as if the lay client were a person whose means enabled him to fight that particular case in a reasonable manner.
The correct viewpoint to be adopted by a taxing officer on a legal aid taxation, when considering whether or not an item in a bill of costs is “proper,” is that of a sensible solicitor considering what, in the light of his then knowledge, is reasonable in the interests of his lay client.
Where a solicitor bona fide acting in what he considers the best interests of his client has incurred expenditure which will fall, unless allowed on legal aid taxation, on him personally, it would be wrong for the court to be astute in seeking reasons to disallow the items. As regards such honestly incurred expenditure the taxing officer on a “common fund” taxation should take a “liberal view.”
It is the standard, and proper, view of taxing officers that as a general rule a solicitor acting on the advice of properly instructed counsel can hardly be said to be acting unreasonably.
The solicitors for a legally aided wife respondent were informed by their client that she had grounds to suspect the husband of adultery although he did not pray in his petition for the discretion of the court. They caused inquiries to be made accordingly, and took counsel's advice as to the desirability of continuing those inquiries, which ultimately led to a confession of adultery and an amendment to ask for discretion. On the solicitor and client taxation the registrar disallowed the expense in connexion with counsel's advice (including his fee) and of the inquiries, stating that it was the duty of solicitors to do all they properly could to protect the fund, that the wife's solicitors had failed to discharge that duty, and that they had gone beyond what was “absolutely necessary” in the interests of their client. He further reduced the charge for instructions for brief (which included work in connexion with the inquiries as to adultery and correspondence) from 80 guineas to 20 guineas:—
Held, (1) that the registrar had erred in principle as to the primary duty of a solicitor conducting an assisted case, and as to what was proper in the client's interest, and had failed properly to take into account the fact that the solicitors had obtained counsel's advice.
(2) That the expenses of the inquiries had been reasonably incurred and should be allowed; even on the footing that the wife's certificate had been restricted to an authority to defend, where there were good grounds for suspecting a petitioner of adultery the respondent's solicitors would be doing less than their duty if they did not take reasonable steps to ascertain the true position.
(3) That although the figure of 20 guineas for instructions for brief was very much on the low side for such work as the registrar had considered permissible the quantum for that part of the work was not such as to justify review.
(4) That in respect of work and correspondence disallowed under the heading “instructions for brief” 25 guineas should be allowed in addition to the above 20 guineas.
(5) That the items in relation to the instructions to and advice by counsel should be allowed.
Per curiam: It is essential that legal aid certificates should be clear so as to enable all concerned to understand exactly what they mean.
SUMMONS to review taxation of assisted person's solicitor and client costs in defended divorce suit (adjourned into court for judgment).
The husband by his petition of March 24, 1953, alleged adultery by his wife from February, 1940, onwards. The wife by her answer of July 15, 1953, admitted the adultery charges but alleged that it had been conduced to by the husband's conduct. She further alleged that the same conduct constituted constructive desertion by the husband in 1938 and accordingly in her turn asked the court in its discretion for a decree. It was common ground that in 1938 the wife had obtained from the justices an order against the husband on the ground of his neglect to maintain her and her child. Whilst the wife asked for the discretion of the court to be exercised in her favour and filed a discretion statement accordingly, the husband made no such request and filed no such statement.
Upon the wife informing her solicitors that she had grounds to suspect the husband of adultery, they caused inquiries to be made. In July, 1954, the solicitors, being doubtful as to whether these inquiries were justifying themselves, put the matter before counsel. The advice they received was to the effect that whilst there was a certain consistency in the material thus far gathered, there was nothing as yet in that material which would justify an amendment at that stage of the pleadings: it was also advised that certain further inquiries could reasonably be made. The solicitors thereupon continued in their previous course, still without success, but whilst dealing with a quite different matter at the beginning of November, 1954, they chanced upon vital information and on November 6, 1954, two days before trial, an inquiry agent obtained a written confession from the woman concerned.
On November 8, 1954, the case appeared in the list before Donovan J., who in all the circumstances refused the wife leave to amend her answer, but granted the husband leave to amend his petition by asking for the discretion of the court. Thereupon the husband filed a discretion statement admitting adultery from June, 1953, onwards. The result of the trial was that both parties obtained decrees — the husband being told plainly that he was fortunate in the circumstances to have discretion exercised in his favour.
The wife and co-respondent (whose costs were not in issue on this application) were assisted persons from the start; the husband was granted a civil aid certificate after the proceedings had begun. No order was made at the hearing for costs inter partes.
When the matter of the taxation of the costs of the wife came before the district registrar at Lincoln on a solicitor and client taxation under the provision of the Legal Aid and Advice Act, 1949, certain items in the bill were disallowed and others reduced. Objections were lodged in respect of more than 20 items and the objections were pursued in respect of the following:—
“In view of fresh developments further instructions to counsel to advise on evidence (charge £1); Attending counsel therewith (charge 6s. 8d.); Paid his fee and clerk (charge £2 4s. 6d.);
“Instructions for brief including numerous attendances on respondent, co-respondent and Mrs. J. [the wife's mother]. Instructing agents at Spalding and Leicester to make inquiries, correspondence with them and perusing their reports. Such reports being unsatisfactory, attending at Spalding and Gosberton with respondent, interviewing numerous possible witnesses...
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