Mills v Mills

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE DIPLOCK,LORD JUSTICE ORMEROD,LORD JUSTICE DONOVAN
Judgment Date07 March 1963
Judgment citation (vLex)[1963] EWCA Civ J0307-1

[1963] EWCA Civ J0307-1

In The Supreme Court of Judicature

Court of Appeal

Before

Lord Justice Ormerod

Lord Justice Donovan and

Lord Justice Diplock

Mills, R. J.
and
Mills, T.L.L.

Mr T. A. Coningsby (instructed by Messrs. Asher Fishman & Co.,) appeared as Counsel on behalf of the Appellant (Respondent).

Mr Neil Taylor (instructed by Ambrose Applebe, Esq.,) appeared as Counsel on behalf of the Respondent (Petitioner).

Lord Justice Ormerod: We need not trouble you, Mr. Taylor. I will ask Lord Justice Diplock to deliver the first Judgment.

LORD JUSTICE DIPLOCK
1

This appeal raises a short and difficult point of construction under the Legal Aid and Advice Act, 1949. The circumstances under which it arises are these. The Appellant was Respondent to a Petition for dissolution of marriage by his wife, in which she asked for alimony pendente lite, maintenance and costs, as well as for dissolution of the marriage.

2

The Appellant (to whom I will, in future, refer as "the husband"), was granted a Legal Aid Certificate in a limited form. That Certificate certified that he was entitled to legal aid to be heard as Respondent in the High Court of Justice, Probate, Divorce and Admiralty Division (Divorce) Proceedings entitled. Rhoda Jean Mills, Petitioner, and Thomas Leonard Lantey Mills, Respondent, in respect of the claim in the Prayer of Petition for alimony and maintenance. To include application to determine liability for costs. The Certificate was thus limited to defending on those matters, and not to defending upon the Petition for the decree of dissolution.

3

The matter came on in November, 1961, before Judge Herbert, sitting as Commissioner in the Divorce Division here, and he granted a decree nisi of dissolution, the question of alimony and maintenance being referred to some other Judge. He made an Order for costs against the husband, whose Certificate did not include defending the application for dissolution of the marriage. In making an Order for costs in this form, the learned Commissioner felt that he was entitled to do so upon the true construction of Section 2, Subsection (2), Paragraph (e), of the Legal Aid and Advice Act, 1949. But, as the husband was not represented at the hearing of the Petition, the Order for costs was made without argument.

4

It has apparently long been the practice in legal aid cases in the Divorce Division to grant legal aid certificates in the limited form which was granted in this case, a form which is authorised by Regulation 6 of the current Legal Aid (General) Regulations of 1962; and it has always been the general practice that, when a certificate is granted in that form, Paragraph (e) of Subsection (2) of Section 2 of the Legal Aid and Advice Act is treated as covering the costs incurred on the undefended petition for dissolution of marriage. There is, however, or had previously been, no express decision on the matter, and anapplication was made - indeed several applications were made - to Mr. Commissioner Herbert to seek to persuade him to vary his Order, in particular, as there had in the meantime been a decision in the contrary sense by Judge Rawlins, sitting as Commissioner in the Divorce Division. Judge Herbert came to the conclusion on the final application, which was in October last, that he had no right to vary his Order becguse he was functus officie, is plainly he was, and it has not been sought to be argued before us, that, in that respect at any rate, he was not right. He did, however, give leave to appeal from his earlier Order as to costs made on the 13th November, 1961, so that the matter could be considered by this Court as this is a matter on which there are now two conflicting decisions.

5

The point is quite a short one, and turns upon the true construction of the word "proceedings" in Section 2, Subsection (2) of the Legal Aid and Advice Act. I think I must approach that Section by looking first at Section 1 of the Act, which deals with the "Scope and general conditions of Legal Aid in connection with proceedings", and it starts in Section 1, Subsection (1): "This and the three next following sections provide for, and (save aa hereinafter mentioned) relate only to, legal aid in connection with proceedings before courts and tribunals in England and Wales" - and then I think I can leave out the rest. Subsection (2) provides: "Unless and until regulations otherwise provide, the proceedings in connection with which legal aid may be given are any proceedings of a description mentioned in Part 1 of the First Schedule to this Act, except proceedings mentioned in Part 11 of that Schedule." The only assistance which one gets here as to the meaning of "proceedings" is, I think, to be found in Paragraph 2 of Part 1 and in Paragraph 6 of Part II of that Schedule. Paragraph I sets out "Proceedings in any of the following courts" - and then there are some twelve or so different courts. Paragraph 2 say"Proceedings before any person to whom a case is referred in whole or in part by any of the said courts". The only relevance of that - and it is not a very strong guide - is that it does, at any rate, suggest that "proceedings" may be something smaller than the whole action, cause or matter, for, if "proceedings" meant, and meant only, the whole action, cause or matter, Paragraph 2 would be otiose. Then we come to Paragraph 6 of Part II of the Schedule. Part II, containing "Excepted Proceedings"which I need not enumerate, finishes up with Paragraph 6: "Proceedings incidental to any proceedings mentioned in this Part of this Schedule". That again looks as if "proceedings" were an expression narrower than the whole action, cause or matter.

6

I return to Subsection (3) of Section 1, which reads as follows: "Subject to the provisions of this section, the proceedings in connection with which legal aid may be given...

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11 cases
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    • United Kingdom
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    ...that legal aid may be, and often is, granted to deal with one issue arising out of the action as a whole. This is typified by the case of Mills v. Mills [1963] Probate, 329. That was a case where there was a petition for divorce on the ground of the husband's desertion. The wife prayed for ......
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