Hinde v Harbourne and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Neuberger |
| Judgment Date | 19 December 2003 |
| Neutral Citation | [2003] EWHC 3109 (Ch) |
| Docket Number | Case No: SY100990 |
| Date | 19 December 2003 |
| Court | Chancery Division |
[2003] EWHC 3109 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE NEUBERGER
Case No: SY100990
Appeal Reference CH/AP/145 &146
Messrs. Parry Carver for the Claimant/Appellant.
Messrs. Graham Withers & Co. for the Defendants/Respondents
The parties made submissions in writing.
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr. Justice Neuberger
The issue raised on this application concerns the extent of the costs protection to be afforded to a publicly assisted litigant who is liable for costs, in circumstances where the Legal Services Commission ("the Commission") have provided that litigant with an inaccurate certificate of public funding ("certificate"), and the litigant's solicitors have provided a correspondingly inaccurate notice of issue certificate ("notice") to the other litigant. Costs protection is effectively translated into a proviso to an order for costs against a publicly funded litigant to the effect that "payment of such costs shall not be enforced without permission of the Court".
The facts of the matter can be briefly stated. The claimant, Yvonne Hinde, issued proceedings in the County Court on the death of her partner, claiming:
i) That she had a beneficial interest in a property owned by her partner ("the property"); and/or
ii) That she was entitled to a sum of money from her former partner's estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act").
The defendants, Zoe Harbourne and others, were members of her former partner's family.
The claim came before His Honour Judge Rundell. On 23 rd April 2002, he dismissed the claimant's claim that she had an interest in the property, but he awarded her £20,000 under the 1975 Act, and further ordered the defendants to pay the claimant's costs.
The claimant applied for and obtained permission to appeal the decision that she had no interest in the property, and the defendants obtained permission to appeal the order that the claimant be paid £20,000, and the order for costs. The claimant applied to the Commission for public assistance in respect of her costs on the appeal and the cross appeal, pursuant to the Access to Justice Act 1999 ("the 1999 Act"). A certificate was issued to her, and the "scope of certificate" was in these terms:
"As appellant to be represented on an appeal to the High Court in an action between the funded client/assisted person and the opponent(s)."
The "scope of certificate" also contained a "cost limitation" in the sum of £7,500.
The claimant's solicitor duly issued a notice to the defendants informing them of the issue of the certificate and describing the "scope of certificate" in the same terms as was contained in the certificate, save there was no reference to the £7,500 ceiling.
In due course, the appeal and the cross appeal came on before me on 31 st March 2003, in the Birmingham District Registry. I dismissed the claimant's appeal, agreeing with Judge Rundell that she had no interest in the property. However, disagreeing with Judge Rundell, I concluded that the claimant was not entitled to any relief under the 1975 Act. Accordingly, I allowed the defendants' appeal, and ordered that the claimant should pay the costs in front of Judge Rundell. However, the costs of the appeal and of the cross appeal were adjourned for further argument, which, in light of the comparatively small amount of money involved and the potential cost of an oral hearing, I ordered be provided in writing.
The reason I did not determine the question of the costs of the appeal and the cross appeal arose from the fact that the defendants contended that the certificate (and indeed the notice) only provided public funding for the claimant in respect of her appeal, and that therefore the protection which might otherwise be afforded to the claimant in respect of any liability for the defendants' costs of the appeal proceedings was limited to the costs of her appeal. I invited the parties to make representations on two issues. The first, which can be easily disposed of, concerns the apportionment of costs between the claimant's appeal and the defendants' appeal. The parties are agreed, following my indication, that the total costs of the combined appeal procedure should be apportioned as to 25% to the claimant's appeal and 75% of the defendants' appeal. The parties are also sensibly agreed that, subject to the fact that the claimant was publicly funded in respect of the appeal, she should be liable for the 25% and the 75% costs.
The more difficult question which arises is whether, as the defendants contend, the claimant is only entitled to be protected in respect of the defendants' costs of her appeal (i.e. whether she should only be protected in respect of 25% of the total costs of the appeal process) or whether, as she contends, the claimant should also be protected in respect of the costs of the defendants' appeal (which would have the effect of giving her protection in respect of all the costs of the appeal process).
It seems clear from the Notice served on the defendants' solicitors, and, subject to one point, equally clear from the certificate itself, that, on the face of these formal documents issued by the Commission, the public funding afforded to the claimant was limited to her appeal, and did not extend to the defendants' appeal. In essence, that is because of the words "As appellant" at the beginning of the description of the "scope of certificate". Those words are simply too clear and unambiguous to extend to the cross appeal, where the claimant was not "an appellant", but a respondent. If authority were needed to support that conclusion, it seems to me that it can be found in the majority decision of the Court of Appeal in R&T Thew Limited –v—Reeves [1982] QB 172. This construction of the certificate and the notice is reinforced by D5.3 of the Funding Code which effectively provides that "a strict approach" is generally taken to the interpretation of the description of the proceedings which are covered by the certificate.
In those circumstances, subject to any other points, it is clear that the claimant can only receive any protection in respect of the defendants' costs in relation to her appeal, and not in relation to the defendants' appeal. In this connection, section 11(1) of the 1999 Act provides that the entitlement to costs protection afforded to any publicly funded litigant is "in relation to any proceedings or part of proceedings funded for [her] … by the Commission". Paragraph 3(2) of the Community Legal Service (Costs Protection) Regulations ( SI 2000/441), provides that, subject to certain irrelevant exceptions, costs protection "shall apply only to costs incurred after the issue of the certificate". Paragraph 3(3) of the same Regulations emphasise that costs protection applies "only to costs incurred by the receiving party in relation to proceedings which, as regards to the client, are funded proceedings".]
Accordingly, the fact that a litigant is publicly funded, and indeed the scope of the public funding afforded to any litigant, can in many cases be almost as important to that litigant's opponent as it is to the litigant. It is for this reason that...
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