Gayway Linings Ltd v The Law Society
| Jurisdiction | England & Wales |
| Judge | LORD ROSKILL,LORD JUSTICE ORMROD |
| Judgment Date | 27 June 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0627-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 1980 |
| Docket Number | 1979 M. No. 80 |
[1980] EWCA Civ J0627-3
In The Supreme Court of Judicature
Court of Appeal
On Appeal from The High Court of Justice
Queen's Bench Division
Blackburn District Registry
Lord Roskill
and
Lord Justice Ormrod
MR D. MATTHESON (instructed by The Law Society) appeared on behalf of the Law Society, Legal Aid Fund.
MR G. WINGATE-SAUL (instructed by Messrs James Chapman & Co.) appeared on behalf of the Respondents (Defendants).
The Appellant (Plaintiff) did not appear and was not represented.
On the 13th March, 1980, there came before this court, consisting of Lord Justice Ormrod and myself, an interlocutory appeal from an order made by Mr Justice Hollings sitting in Manchester on the 4th February, 1980. The learned judge had given leave for that appeal. It was an appeal by the plaintiff in a personal injuries case, who objected to submitting to a medical examination at the instance of the defendants unless the defendants first agreed that he (the plaintiff) or his advisers should be given a copy of any resulting medical report. The learned District Registrar upheld the plaintiff's objection, but the learned Judge reversed the District Registrar and we in this court - in a judgment which I gave and with which my Lord agreed - agreed with Mr Justice Hollings, in that respect we followed an earlier judgment of Mr Justice Cussack.
The plaintiff was legally aided; the defendant was not. We dismissed the appeal without calling upon Mr Wingate-Saul, who was appearing for the respondent/defendant in this court. Mr Wingate-Saul has reminded us that either in the judgment which I gave or in the course of the argument afterwards I described the appeal as without merit, as indeed from my present recollection of the case I thought it was. As a result, Mr Wingate-Saul applied for an order that the defendants' costs of this appeal an interlocutory appeal brought by leave of the learned judge in chambers - should be paid by the Legal Aid Fund. After some discussion - which is not (quite rightly) recorded in the transcript we made that order, subject, of course, to the Law Society's usual right to object.
In many of these cases the Law Society do not object; they accept the burden: then the unassisted person's costs in the Court of Appeal come out of the Legal Aid Fund and thus are borne by the taxpayer. But in the instant case the Law Society have objected. We have had the advantage of a very full and careful argument, for which we are greatly indebted, by Mr Mattheson for the Law Society and by Mr Wingate-Saul for the defendants whether or not the order which Lord Justice Ormrod and I tentatively made was an order within the powers of the Court of Appeal. Mr Mattheson has grasped the nettle and has said - and it is, so far as I am aware, the first time that this argument has been advanced in this court, but that certainlydoes not mean that it is wrong - that the Court of Appeal when it dismisses an interlocutory appeal in favour of an unassisted person and against an assisted person who has brought the appeal, has no power at that juncture to make an order under section 13(1) of the Legal Aid Act, 1974, is favour of the unassisted person and against the Legal Aid Fund, I ought, perhaps, also to say that, to the best of my recollection, the order which this court made in the instant case is one which has been made on interlocutory appeals on a number of previous occasions. We have, therefore, looked at the matter very carefully indeed.
We have been referred to a number of authorities - which I will mention in more detail in a moment - but I want to make this point at this juncture: many were decided under statutes that were on the statute book before the Legal Aid Act, 1974, was passed. Before that Act (which was a consolidating Act) the powers of the court in relation to these matters came from at least three different statutes, and most of the cases which came before the court arose either under the 1949 Act, such as Mills v. Mills, reported in 1963 Probate, 329, or under the 1964- Act, such as General Accident Life and Fire Assurance Corporation v. Foster, 1973 1 Queen's Bench, 50. When one looks at the judgments in those cases one sees that the Court of Appeal, on both occasions, referred to, and only to, the language of the statute concerned, which did not cover as wide a field as the 1974 Act. They therefore construed what are the crucial words here, namely "any proceedings" and "those proceedings" in section 13(1) of the 1974 Act in the context in which the corresponding words appeared in the earlier statutes, the 1964 Act and the 1949 Act. Now, of course, when you have a consolidating Act covering a wider field, it is natural to look at all the places in that statute where those words or the word "proceedings" appear; but it is difficult to think that when Parliament consolidated this legislation it intended the word "proceeding" or "proceedings" in the 1974 Act to bear any different meaning from that which it had previously been held to bear under the earlier legislation.
With that introduction, let me turn to the relevant statutory provisions. I do not propose to read all that have been referred to. Section 13(1) reads thus: "Where a partyreceives legal aid in connection with any proceedings between him and a party not receiving legal aid (in this and section 14 below referred to as 'the unassisted party') and those proceedings are finally decided in favour of the unassisted party, the court by which the proceedings are so decided may, subject to the provisions to this section, make an order for the payment to the unassisted party out of the legal aid fund of the whole or any part of the costs incurred by him in those proceedings.
"(2) An Order may be made under this section in respect of any costs if (and only if) the court is satisfied that it is just and equitable in all the circumstances that provision for those costs should be made out of public funds; and before making such an order the court shall in every case (whether or not application is made in that behalf) consider what orders should be made for costs against the party receiving legal aid and for determining his liability in respect of such costs".
Pausing there, with reference to sub-section (2) I would interpose this: first, neither my Lord nor I had any doubt but that it was just and equitable in all the circumstances that the respondents' costs should come out of the Legal Aid Fund; secondly, we performed our duty of considering what order should be made against the plaintiff as "the party receiving legal aid"; and our answer was that, in the light of the information we then had, he should not make any contribution.
I go on to sub-section (5): "Without prejudice to subsection (2) above, no order shall be made under this section in respect of costs incurred in a court of first instance, whether by that court or by any appellate court, unless", and I leave out (a) because that deals with courts of first instance, "(b) the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made."
"(4) An order under this section shall not be made by any court in respect of costs incurred by the unassisted party in any proceedings in which, apart from this section, no order would be made for the payment of his costs".
Section 14 was relied on. I will read 14(1): "Regulations may make provision - (a) for determining the proceedings which are or are not to be treated as separate proceedings forthe purposes of section 13 above", and I need not read the rest of that.
I go to sub-section (3) and sub-section (4), to which my Lord referred during argument. I will not read (3), but (4) reads thus: "Where a court decides any proceedings in favour of the unassisted party and an appeal lies (with or without leave) against that decision, the court may, if it thinks fit, make or refuse to make an order under section 13 above forthwith, but any order so made shall not take effect - (a) where leave to appeal is required, unless the time limited for applications for leave to appeal expires without leave being granted; (b) where leave to appeal is granted or is not required, unless the time limited for appeal expires without an appeal being brought".
I will not read sub-section (5), though Mr Mattheson referred us to it, or the First Schedule.
I can go to the Legal Aid (General) Regulations, 1971, which were made under the earlier legislation. Regulation 6(1): "A certificate may be issued in respect of - (a) one or more steps to assert or dispute a claim; or (b) the whole or part of (i) proceedings in a court of first instance, or (ii) proceedings in an appellate court; but no certificate shall relate to proceedings (other than interlocutory appeals) both in a court of first instance and in an appellate court or to proceedings in more than one appellate court.
"(2) Unless a certificate otherwise provides it shall not without the authority of the appropriate committee given under regulation 15(1) extend to (c) lodging an interlocutory appeal", and I think that is all we need.
We were referred to Regulation 20 but I need not read it. I will go to the Legal Aid (Costs of Successful Unassisted Parties) Regulations, 1964. I need only refer to Regulation 2 of those Regulations: "Any proceedings in respect of which a separate civil aid certificate could" - and I emphasise the word "could" - "properly be issued under the General Regulations to a person receiving legal aid shall be treated as...
To continue reading
Request your trial
- Fellowes (or Herd) and Another v Clyde Helicopters Ltd
-
Gayway Linings Ltd v The Law Society
...(Respondents) and Law Society (Appellants) Lord Diplock My Lords, 1These two appeals, which I shall refer to as " Megarity" and " Gayway Linings" were heard together. They raise questions of great practical importance as to the power of courts exercising appellate functions to order that th......
-
Henry J Garrett & Company v Ewing
... ... The Law Society [1982] A.C. 81 in which it was held, adopting a purposive construction, that an interlocutory ... ...