L v L (Legal Aid Taxation)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE NEILL,LORD JUSTICE ALDOUS,SIR JOHN BALCOMBE
Judgment Date24 January 1996
Judgment citation (vLex)[1996] EWCA Civ J0124-7
Docket NumberFAFMI 93/1418/F

[1996] EWCA Civ J0124-7

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

FAMILY DIVISION

PRINCIPAL REGISTRY

Before: Lord Justice Neill Lord Justice Aldous and Sir John Balcombe

FAFMI 93/1418/F

In the Matter of Re L
and
L (Legal Aid Taxation)

MR K CRAIG (instructed by Messrs Baden Barnes Groves & Co, Oxford Circus North) appeared on behalf of the Plaintiffs.

The Respondents did not appear and were not represented

1

Wednesday 24th January 1996

LORD JUSTICE NEILL
2

In March 1990 Mrs L instructed the appellant firm of solicitors to bring wardship proceedings on her behalf. Legal aid was granted for these proceedings. During 1990 the solicitors carried out various pieces of work for Mrs L. In due course a bill of costs was lodged which was taxed by District Judge Segal on 4th April 1991 pursuant to regulation 107 of the Civil Legal Aid (General) Regulations 1989 and Order 62 rule 12 of the Rules of Supreme Court.

3

In the bill the solicitors claimed for work done by a partner at the hourly rate of £60 and for work done by a legal executive at the hourly rate of £50. The district judge allowed £45 and £30 respectively.

4

Having obtained the authority of the Legal Aid Board the solicitors, in accordance with Order 62 rule 33, applied for a review of the taxation and lodged objections limited to the hourly charging rates. In support of that application, Mr Groves swore an affidavit exhibiting a document which contained the results of a survey which had been carried out of solicitors' costs. On 19th December 1991 the district judge heard submissions from a partner in the firm and from a costs draftsman in support of the objections. On 15th January 1992 the district judge gave his reasons for upholding his earlier decision. I should refer to part of these reasons:

5

"5. So the taxing officer must decide whether the rates claimed are reasonable and, if not, what would be reasonable rates. He must apply Order 62, Appendix 2, Part 1, para 1(2), which provides that in exercising his discretion he must have regard to all the relevant circumstances and, in particular, to the specific matters set out at (a) to (g) inclusive. He does this by using his general knowledge and experience of the rates charged by the average firm in the area concerned. As Evans J said in Johnson v Reed Corrugated Cases Ltd [ [1992] 1 All ER 169, at 183F]: '…the registrar's daily experience of the sums being claimed by local firms is an efficient way of giving him the same information…'

6

6. This is exactly how the taxing officers (including the district judges) of the Principal Registry acquire their general knowledge and experience of the rates charged for legal aid work by the average firm in the central London area. The average figure claimed for 1990 was £45 an hour for a partner, less for an employed solicitor, even less for a legal executive. I accordingly reduced the hourly rates in this case from £60 to £45, and from £50 to £30.

7

7. It is now said that the rates which I allowed are not based on reasonableness, and that they do not reflect the broad average direct cost of an average central London solicitor. The plaintiff's solicitor has sworn an affidavit in which is exhibited the result of a survey carried out in July 1991 by the West London Law Society. The survey sets out, interalia, the expense rates for ten comparable firms in Westminster, the London Borough in which he practises. These, for a partner, vary from £66.66 to £200; the average is £108. The average expense rate of a legal executive, calculated on all the Westminster firms in the survey, is £55, ie about half the partner's rate."

8

The district judge held that the evidence of a survey was admissible. He based himself on another passage in the judgment of Evans J where he had said at page 183E:

9

"[These consultations between local firms, acting individually or collectively through local law societies and registrars, with the aim of informing registrars what the current level of overheads is and what the likely consequences of inflation are] … are the most practicable way of equipping the registrar directly with the local knowledge which he needs for the discharge of his function, and they are the only practicable way of informing him, not of the figures for one or a small number of firms, but of a range of information which enable him to form a view about the average."

10

Relying on that passage the district judge, rightly as I see it, held that the evidence was admissible.

11

Having then considered the particular question of legal aid taxation, he continued later in his reasons as follows:

12

"11. I therefore have on the one hand the knowledge and experience of the Principal Registry taxing officers, and on the other hand the results of the survey.

13

12. I have come to the conclusion that the survey does not carry enough weight to displace the collective knowledge and experience of the taxing officers.

14

The survey does not distinguish between legal aid and non-legal aid work.

15

There are only ten comparable firms. Evans J refers to 'not one or a small number of firms'.

16

The figures from these firms vary by over £130 an hour. Why is one firm able to charge only £66.66, whereas another feels justified in charging £200?

17

How many of these firms are specialists, either in family or some other type of work, and how many are general practitioners?

18

Does any of them carry out predominately legal aid or non-legal aid work?

19

How much does each of them expect to recover from its clients under the terms of its retainer?

20

Finally, if the plaintiff's solicitors' hourly rate is between £99 and £107, why is only £60 claimed?"

21

The district judge went on to say that he could not find any good reason for the claim being limited to £60 and concluded that he would uphold his earlier decision.

22

The solicitors then applied to the High Court for a review under Order 62 rule 35. In his judgment dated 29th January 1993 Cazalet J, sitting with a single assessor, confirmed the taxation of costs and the review conducted by District Judge Segal. It was held that the district judge had not erred in law and had taken into account all those matters which he was required to take into account. That decision is now reported in [1994] 2 FCR 185.

23

It is to be noted that the judge on this occasion sat with only one assessor. That is of relevance because it is provided in Order 62 order 35(5) that, if a judge decides to appoint assessors under section 70 of the Supreme Court Act 1981 to sit with him, he must appoint not less than two assessors. This matter came to the attention of the judge, but counsel who was then appearing for the solicitors, having taken specific instructions, said that he raised no objection to the judge giving judgment despite the fact that only one assessor had sat. That was, in the circumstances, probably an extremely sensible decision. We have had to consider, though not at length, whether that defect in the constitution of the tribunal which heard the review under Order 62 rule 35 has any effect as far as the powers of this Court are concerned. However, my Lord, Sir John Balcombe, has drawn our attention to the provisions of Order 2 rule 1, which makes it plain that a failure of this kind is merely an irregularity and does not nullify the proceedings. In those circumstances I propose to proceed to deal with the case as though the tribunal sitting to hear the review from the district judge had been properly constituted.

24

On 14th May 1993 Cazalet J gave leave to appeal to this Court.

25

The case came on for hearing before a Court of Appeal differently constituted in February 1994. I was a member of that court. It was then adjourned to enable the Lord Chancellor's Department and the Legal Aid Board to consider whether either the Department or the Board wished to be represented. The Court has been informed that neither the Department nor the Board wish to be heard on this appeal. It is a matter for great regret that it is very nearly two years since the matter was last before the Court.

26

I should refer first to the relevant rule. The taxation and assessment of costs is dealt with in Part III of Order 62 of the Rules of Supreme Court. Order 62 rule 12 provides in paragraph (1) as follows:

27

"On a taxation of costs on the standard basis there shall be allowed a reasonable amount in respect of all costs reasonably incurred and any doubts which the taxing officer may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the paying party; and in these rules the term 'the standard basis' in relation to the taxation of costs shall be construed accordingly."

28

It is to be noted that the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 do not apply in this case and so we need give no consideration to them. The legal aid certificates were granted in 1990.

29

In the course of the hearing of this appeal we were referred to a number of recent cases in which the principles to be applied by a district registrar or taxing officer on a taxation of costs have been considered. These authorities appear to me to establish the following propositions:

30

(1) The general principle of taxation is that a solicitor's remuneration should consist of two elements —first, a sum computed on the basis of an hourly rate which represents what is called the 'broad average direct cost' of undertaking the work; and second, a sum, usually expressed as a percentage mark up of the broad average direct cost, for care and...

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