Jackson v Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leveson |
| Judgment Date | 27 March 2003 |
| Neutral Citation | [2003] EWHC 626 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No H002X02965 |
| Date | 27 March 2003 |
[2003] EWHC 626 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
The Honourable Mr Justice Leveson
Sitting With Senior Costs Judge Hurst As An Assessor
Case No H002X02965
A J Engel (instructed by Mr Jackson on his own behalf)
Jeremy Morgan (instructed by Treasury Solicitor) for the defendant
Hearing date: 12 March 2003
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.
This is an appeal from one aspect of a decision of costs judge Rogers in connection with an appeal from a determination of costs in a criminal trial pursuant to the Legal Aid in Criminal and Care Proceedings (Regulations) 1989 SI 1989/343 as amended (hereafter referred to as "the Regulations") and concerns the refusal of the costs judge to allow the additional cost of the instruction of counsel for the purpose of conducting the appeal which he had determined. It is brought (without any requirement to obtain permission) under regulation 16 of the Regulations, the costs judge having certified a point of principle of general importance, namely:
"Was the costs judge correct in restricting the appellant's costs under regulation [15(14) of the Regulations] to the costs which would have been incurred had the appellant conducted the appeal himself and disallowing the costs of instructing other counsel?"
As required by regulation 16(3), the Lord Chancellor is the respondent to the appeal and pursuant to the Order of Master Yoxall, the Bar Council were given permission to intervene (which was put into effect in the form of written submissions).
Although the point in issue is extremely restricted, in order to understand its true significance, it is necessary to provide something of the background. Between 5 March and 4 April 2001, at the Crown Court in Manchester, Mr David Fish QC and Mr Wayne Jackson successfully defended a client who had the benefit of a representation order having been charged, along with a number of others, with alleged frauds upon members of the medical profession. It is clear that Mr Fish was only able to accept the brief at a late stage and that Mr Jackson had undertaken the burden of the preparation which was so successful that the prosecution collapsed. Mr Jackson described his involvement to the determining officer responsible for assessing the fee that it was appropriate for him to receive from the legal aid fund as "living and breathing this case for almost 19 months". He completed a detailed log of his work (some 49 pages in length). After the initial determination, he was dissatisfied with what he received and, on an application for re-determination, he submitted a further three page memorandum and also made oral representations to the official responsible for the assessment. When this submission was unsuccessful, under regulation 15, he appealed to the costs judge.
At this stage, Mr Jackson decided that, rather than continuing to act on his own behalf, he would instruct counsel to represent him, He chose Mr Anthony Engel who specialises in this field and, as permitted by paragraph 401 of the Code of Conduct of the Bar, he instructed Mr Engel direct, that is, without the intervention of a solicitor. Mr Engel then conducted the appeal and was, in part, successful although he only obtained an increase of just over one sixth of that which he sought. That brought into play regulation 15(14) of the Regulations which is in these terms:
"Except where he confirms or decreases the sums redetermined under regulation 14 or confirms a decision to allow standard fees, the [costs judge] may allow the appellant a sum in respect of part or all of any reasonable costs (including any fee payable in respect of an appeal) incurred by him in connection with the appeal."
The fee payable in respect of the appeal was £25; the costs judge allowed that claim and no issue arises in relation to it.
The problem arose when Mr Engel asked the costs judge to allow the costs incurred by Mr Jackson in relation to his appearance on to the appeal. He explained that he had put in 35 hours work in preparation of the appeal. In his written judgment, the costs judge concluded:
"I do not doubt for one moment that he [Mr Engel] did, indeed, put in 35 hours' preparation for this appeal, which he said he did, but my interpretation of the Regulations is that the fee paid, if the appeal succeeds in part or in whole, should be that fee which is appropriate properly to remunerate counsel for what he would need to do to present the case. I consider that if Mr Jackson, himself, with his intimate first hand knowledge of the case, had come down to London to argue it, he would not have put in so many hours of preparation as Mr Engel and it would, therefore, be wrong to allow Mr Jackson, whose appeal it is, a fee so much more than would have been appropriate had he presented the appeal in person."
Mr Engel submits that this construction of the Regulation flies in the face of authority and, furthermore, that in the circumstances of this case (indeed, in all normal circumstances) it is entirely reasonable that independent counsel be instructed and that if the appeal is successful, the sum allowed should include a 'proper' fee in respect of counsel who conducts the appeal. These issues must be dealt with separately.
The Construction of the Regulation
The proper construction of this regulation was considered by Leggatt J in Regina v Boswell [1987] 1 WLR 705. He was concerned with the Legal Aid in Criminal Proceedings (costs) Regulations 1982 but regulation 11(14) makes provision which is, in all material respects, repeated in regulation 15(14) of the Regulations. The argument was put and dealt with by Leggatt J in these terms:
"In this court [counsel for the barristers] argued that a fee paid by one lawyer to another for legal representation must constitute part of the costs, however defined, of the person paying. [counsel for the Lord Chancellor] does not seek to controvert this proposition, but argued that the incurring of such costs would only be reasonable in exceptional circumstances, for example where the appellant counsel is ill or abroad for a protracted period.
In my judgment a professional fee payable by one barrister to another for conducting the appeal of the former is capable of constituting part of the costs incurred by the appellant, within the meaning of regulation 11(14) of the Regulations of 1982. Whether such costs constitute "reasonable costs" within the meaning of the paragraph is a matter within the discretion of the taxing master."
Later, having observed that the costs recoverable where one barrister instructs another to act for him must be the same in principle as where one solicitor instructs another to act for him, he went on (at page 711):
"In relation to both appeals, the taxing master ought therefore to have concluded that he did have power to allow costs to such extent as in the exercise of his discretion he considered reasonable. In assessing the costs he would no doubt be entitled to take account of time and skill expended by the appellant or his counsel in drawing the grounds of appeal to the taxing master, in the preparation of appeals and in the...
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