L v L (Legal Aid Taxation)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Court | Family Division |
Cazalet, J sitting with District Judge White as an Assessor
Costs – legal aid taxation – taxing officer to act inquisitorially and to base his assessment on his knowledge and experience – not appropriate for rate allowed to reflect inflation as solicitor should lodge bill for taxation within three months and in long-running case could apply to Legal Aid Board for payment on account – rate to be reasonable and based on taxing officer's daily experience of sums claimed.
Legal aid was granted to the plaintiff mother in wardship proceedings in March 1990. During March and April 1990 a number of applications were made. In April 1991 the plaintiff's bill of costs was lodged claiming £60 an hour for a solicitor who was a partner and £50 an hour for a legal executive for the preparation. A district judge provisionally taxed the bill, allowing an hourly rate of £45 for a partner and £30 for a legal executive. The solicitors requested the district judge to review his taxation. The solicitors, who practised in central London, claimed that the hourly rates allowed were not based on reasonableness and did not reflect the broad average direct costs of an average central London solicitor. They lodged an affidavit sworn by a partner in the firm which exhibited a survey carried out by the West London Law Society. This survey sought to demonstrate that the average expense rate for a partner practising in a firm of the size of the plaintiff's solicitors in a like geographical area was between £99.35 and £107.17 an hour. The district judge admitted the survey as evidence but held that it did not carry enough weight to displace the collective knowledge and experience of the taxing officers, including district judges of the Principal Registry which was acquired through their daily experience of the sums claimed for legal aid work by the average firm in the central London area. The district judge restated his assessment of the rate of £45 an hour for a partner and £30 an hour for a legal executive.
The solicitor applied to a Judge for a review of the decision of the district judge.
Held – confirming the district judge's taxation: (1) A legal aid taxation was different from all others in that there was no one to oppose it. It was not adversarial but inquisitorial. In his reasons the district judge had indicated that he could not ignore the fact that he was dealing with a legal aid taxation. This did not indicate that he was adopting a different basis for such a taxation. He was properly directing himself that he must look at the matter inquisitorially, whereas if the taxation had been inter partes, it would not have been
appropriate for him to have acted inquisitorially but rather for the paying party to have challenged the bill. The fact that a paying party, in a non-legally aided standard basis taxation, might or might not concede higher or lower rates than the taxing officer might himself be prepared to countenance on a legal aid standard basis taxation did not alter the basis of taxation which in each case was strictly based on the considerations set out in RSC Ord 62 r 12. The district judge had referred in his reasons to the Matrimonial Causes (Costs) Rules 1988. Schedule 2 to those Rules prescribed, for 1990, an hourly rate of £41.50 for the South Eastern circuit. Although the 1988 Rules had no application to an Ord 62 taxation in wardship proceedings, the district judge had properly taken Sch 2 to those Rules into account as part of his knowledge-gathering process.
(2) It was submitted that on a legal aid taxation the rates should reflect inflation because, on an inter partes taxation, the reason for taxing costs at the rate prevailing at the date of the order was that interest was payable from the date of the order for costs to the date of payment, whereas there was no such provision for interest in a legal aid taxation. There was no substance in this point. By RSC Ord 62 r 29(1) a party entitled to require costs to be taxed was required to begin proceedings for taxation within three months after the relevant order, so there should be no appreciable delay if the solicitor acted promptly. In the instant case the solicitor's bill was not lodged until a year after the last of the relevant orders. Further, by regs 100 and 101 of the Civil Legal Aid (General) Regulations 1989 a solicitor acting for an assisted person could apply to the Legal Aid Board for payment of sums on account of profit costs and disbursements. It was, therefore, not correct to say that the solicitor in a long-running legally aided case had to wait until the final taxation of costs to receive any payment. The payment on account scheme allowed him to receive substantial stage payments as the matter proceeded.
(3) By RSC Ord 62 r 12 the taxing officer was required to allow a reasonable amount in respect of all costs reasonably incurred. The information gathered from the survey by the West London Law Society could not be regarded as the definitive figure to be accepted by the taxing officer. It simply formed part of the knowledge and experience on which he based his informed judicial assessment. Statistics from the Family Division taxing department for 1990 showed that High Court Ord 62 taxations were taxed, allowed and accepted for 1990 work on the basis of an hourly rate of £45 for a partner and £30 for a legal representative. The rates allowed upon taxation in the Principal Registry of the Family Division in Ord 62 taxations were well established within the profession. They were figures which had been the taxing officers' daily experience of sums claimed in 1990 by different firms. In the present case the district judge had not erred in law and had taken into account all those matters he was required to take into account. The application of the expense rates of £45 and £30 an hour for a partner and legal executive respectively was a fair basis of remuneration and, when subjected to the care and control uplift which the district judge allowed, was a reasonable amount in respect of all costs reasonably incurred in the matter.
Statutory provisions referred to:Civil Legal Aid (General) Regulations 1989, regs 100, 101, 107 and 122.
Matrimonial Causes (Costs) Regulations 1988, Sch 2.
RSC Ord 62 rr 12, 22, 29, 31, 33 and 35, and Appendix 2, Part I, para 1, and Part II paras 1 to 4.
Cases referred to in judgment:Johnson and Others v Reed Corrugated Cases Ltd [1992] 1 All ER 169.
Leopold Lazarus Ltd v Secretary of State for Trade and Industry (1976) Sol Jo 268.
R v Wilkinson [1980] 1 WLR 396; [1980] 1 All ER 597.
Storer v Wright [1981] QB 336; [1981] 2 WLR 208.
Kenneth Craig for the plaintiff's solicitors.
Judgment Mr Justice Cazalet.In this matter Messrs Baden Barnes Groves and Co, solicitors, of 37 Harley Street, London W1, seek a review by this court, pursuant to the provisions of RSC Ord 62 r 35(1), of a decision made by District Judge Segal on 15 January 1992 when sitting as a taxing officer. The solicitors concerned acted for the plaintiff mother in wardship proceedings in which the plaintiff was legally aided. The plaintiff has no interest in the taxation and has taken no part in the taxation proceedings.
The background to the legal proceedings can be shortly stated. On 18 March 1990 the defendant father disappeared from the parties' home in Israel taking a young child of the family with him. The plaintiff suspected that the defendant had brought the child to England, and so she came to this country in search. An emergency legal aid certificate was granted to her on 27 March 1990. An originating wardship application was lodged on her behalf on 28 March 1990; this was then followed by a number of interlocutory applications. A seek and find order was made. Abortive attempts were made to serve that order. An ex parte application was made for the defendant to be committed to prison, and a further ex parte order was made freezing all bank accounts held in his name. The defendant's mother and father were ordered to attend court to be cross-examined. During a period of approximately one month a substantial number of applications were made on behalf of the plaintiff, and orders were made on 28 March 1990, 30 March 1990, 9 April 1990, 11 April 1990, 25 April 1990 and 27 April 1990. It is pursuant to the orders then made that the bill of costs in question was lodged for taxation.
With the benefit of hindsight, but not by way of any criticism of those concerned, it is now apparent that the proceedings taken in this country could never have been of any effect since it was eventually discovered that the defendant and child had never in fact come here but were at all material times in South Africa. The defendant and child ultimately returned to Israel, whereupon matters proceeded without further reference to the English court.
Although most of the solicitors' activity in this matter proceeded pursuant to the emergency legal aid certificate granted on 27 March 1990, a full legal aid certificate was issued on 16 August 1990. On 3 April 1991 the plaintiff's bill of costs was lodged. On 4 April 1991 it was provisionally taxed by District Judge Segal.
The taxation of costs recovered in High Court civil proceedings when those proceedings are conducted on behalf of an assisted person is governed by a combination of the provisions of reg 107 of the Civil Legal Aid (General) Regulations 1989 and RSC Ord 62, r 12. Regulation 107 of the Civil Legal Aid (General) Regulations 1989, states, inter alia, that:
"(3) Where in any proceedings to which an assisted person is a party … (b) the court gives judgment or makes a final decree or order in the...
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