Jeffrey Turner (Plaintiff/Appellant) v Plasplugs
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PETER GIBSON,LORD JUSTICE SCHIEMANN |
| Judgment Date | 26 January 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0126-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 January 1996 |
| Docket Number | CCRT1 94/1630/G |
[1996] EWCA Civ J0126-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PATENTS COUNTY COURT
Appeal
(His Honour Judge Peter Ford)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Peter Gibson Lord Justice Schiemann
CCRT1 94/1630/G
MR. G COOPER (Instructed by Messrs. Mildred & Beaumont, London) appeared on behalf of the Appellant
MR. G CHAMBERS (Instructed by Messrs. Evershed Wells & Hind, Nottingham) appeared on behalf of the Respondent
Friday 26 January 1996
THE MASTER OF THE ROLLSThis appeal from a decision made in the Patents County Court raises an issue of considerable practical importance on the legal effect of a legal aid certificate granted to the plaintiff in these proceedings.
Such an issue may arise in a number of different ways. The question may be whether work which solicitors or counsel have done for a client is work for which they are entitled to be paid by the Legal Aid Board. The answer will depend on whether the work in question is work covered by the certificate granted to the client. The question may also arise where a solicitor or counsel seeks to be paid not by the Legal Aid Board but by the client. That was the question in Littaur v Steggles Palmer [1986] 1 WLR 287. What is now regulation 64 of the Civil Legal Aid (General) Regulations 1989 forbids solicitors and counsel to receive payment from the client for work covered by a certificate. So it may have to be decided whether the work for which payment is sought from the client was work covered by the certificate.
Sometimes the question arises when an opposing party in litigation seeks an order for costs and the party against whom the order is sought seeks the protection of what is now section 17 of the Legal Aid Act 1988. For example, a defendant or respondent may be granted legal aid to resist some claims made by a plaintiff or petitioner but not others. That was the position in Mills v Mills [1963] P 329 and Herbert (otherwise Bridgeman) v Herbert [1964] 1 WLR 471. In those cases it had to be decided whether the claims or issues in relation to which the petitioner sought costs were claims or issues in relation to which the respondent was assisted by legal aid.
A variant of this issue arises where a legal aid certificate is limited not by reference to particular claims or issues but by reference to specific procedural steps or stages. Limitations of this type fell for consideration in Dugon v Williamson [1964] Ch 59 and Boorman v Godfrey [1981] 1 WLR 1100, [1981] 2 All E.R. 1012. In the first of those cases a respondent successful on appeal sought an order for costs against the unsuccessful appellant. In the second of the cases a defendant successful on an interlocutory application sought an order for costs against the plaintiff. In each case the party against whom the order was sought claimed the protection of what is now section 17 of the 1988 Act. In each case it had to be decided whether the costs which the successful party was claiming were costs incurred at a time when, or in relation to a procedural stage at which, the unsuccessful party was an assisted party.
The problem in this appeal is of the latter kind, as appears from a recital of the brief facts.
Mr Turner was the registered proprietor of a United Kingdom patent. In April 1993 he consulted solicitors about commencing proceedings against Plasplugs Limited for infringement of his patent. The solicitors applied for legal aid on his behalf. On 10 June 1993 he was granted a certificate "To take proceedings against Plasplugs Limited for breach of patent rights". The certificate was subject to conditions and limitations which, so far as relevant, were:
"Limited to obtaining further evidence and thereafter Counsel's Opinion as to merits and quantum, to include settling of proceedings or a defence (and counterclaim) if Counsel so advises."
Counsel was accordingly instructed to advise Mr Turner on the merits and generally. He was unable to advise whether Mr Turner's patent was valid, since he was not provided with details of any prior art, but he advised that, if the patent was valid, Mr Turner had a good arguable case on infringement. This advice was given in writing on 12 October 1993. In view of counsel's positive advice he was instructed to settle a draft statement of case to enable proceedings to be issued. He did so and sent a draft to Mr Turner's solicitors which reached them on 26 October 1993. Counsel's draft was then perfected and proceedings were issued at the end of November 1993.
It is accepted on Mr Turner's behalf, obviously rightly, that the issue of proceedings was a step which was outside the scope of his legal aid certificate. The limitation imposed on this certificate was perhaps a little odd, since if favourable advice by counsel was to be treated as sufficient to warrant the settling of proceedings, one would have expected it to be sufficient warrant also for those proceedings to be issued without further reference back to the legal aid committee for an extension of the certificate. The limitation was, however, expressed as quoted above, and there is no argument about its effect. Unfortunately, that effect was not noted by the assistant solicitor handling the case, and proceedings were thus issued without any further reference to the legal aid committee. Unfortunately, also, Mr Turner's solicitors failed to give notice to the defendant company of the issue of his legal aid certificate, as they were required to do by regulation 50 of the Civil Legal Aid (General) Regulations 1989. This did not deprive Mr Turner of any protection to which he was or would have been entitled as an assisted person: King v T & W Farmiloe Limited [1953] 1 WLR 458. But it did mean that the defendant company and its solicitors were unaware that any legal aid certificate had been granted to Mr Turner, and of course deprived them of any opportunity to point out that the certificate did not cover the issue of proceedings.
The defendant company delivered a defence and counterclaim dated 4 March 1994. This defence denied infringement of Mr Turner's patent. Also, and more importantly, it challenged the validity of that patent, placing reliance on prior art not only in this country but also in Germany and the United States. Mr Turner's counsel was invited to consider this defence, and in the light of it he felt unable to recommend extension of the legal aid certificate. Mr Turner accordingly instructed his solicitors to discontinue the proceedings, and they gave notice under Order 18 of the County Court Rules asking that his liability for costs should be limited as if section 17 of the 1988 Act applied. When the matter came before His Honour Judge Ford in the Patents County Court it was argued that section 17 did apply. The issue the judge had to decide was whether it did or not. He held that it did not. Distinguishing Boorman v Godfrey, on which Mr Turner principally relied, the judge said in paragraph 2.7 of his written judgment:
"Once the steps authorised by a limited certificate have been taken, the certificate is, if not extended (even retrospectively) spent. It would appear to undermine the whole system of limiting certificates if the assisted person could claim the same protection from liability for costs thereafter as if he had obtained an extension. The possibilities of abuse of the system are even greater if there is no sanction for failing to notify the Legal Aid Board, other parties and the Court of the position, preventing action being taken, if necessary, to discharge the certificate."
It is argued for Mr Turner on this appeal that the learned judge was wrong and that Mr Turner was at all times, in the terminology of the Act, "a legally assisted person". That expression is defined in section 2 (11) of the Act to mean "any person who receives, under this Act, advice, assistance or representation and, in relation to proceedings, any reference to an assisted party or an unassisted party is to be construed accordingly". It is therefore argued that Mr Turner was entitled to the benefit of section 17 (1), which provides:
"The liability of a legally assisted party under an order for costs made against him with respect to any 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 financial resources of all the parties and their conduct in connection with the dispute".
Mr Turner had been assessed as having a disposable income of nil and a disposable capital of nil and had not been required to make any contribution towards his legal aid expenditure. It has not been argued that any costs order could or should have been made against him even if section 17 did apply in the circumstances. So the question in this court, as before the judge, is whether section 17 did apply on the facts of this case. Does that section protect Mr Turner against an order for payment of the costs which the defendant company seeks to recover against him, namely the costs of preparing and settling a defence to the proceedings issued by Mr Turner ?
In the absence of authority, but having regard to the language of the Act and the Regulations, I would for my part regard the answer to that question as clear. Mr Turner did not, as is accepted, have the benefit of a legal aid certificate to issue proceedings. That was, to express the same point in different words, something done without the benefit of legal aid. There is no suggestion that the defendant company incurred...
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