Mohammadi v Shellpoint Trustees Ltd and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BRIGGS,Mr Justice Briggs |
| Judgment Date | 22 May 2009 |
| Neutral Citation | [2009] EWHC 1098 (Ch) |
| Docket Number | Case No: 38R 207 |
| Court | Chancery Division |
| Date | 22 May 2009 |
[2009] EWHC 1098 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE SUPREME COURT
COSTS OFFICE
Before: Mr Justice Briggs
Sitting with Master O'Hare and Mr David Harris, Solicitor
Case No: 38R 207
Formerly CH/2007/PTA/0605
Mrs Mohammadi appeared in person
Mr Howard Lederman (instructed by Bell Dening, Solicitors) for the Respondents
Hearing date: 13 th May 2009
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.
Mr Justice Briggs:
This is an appeal by Leila Mohammadi against the Order of Master Campbell as Costs Judge made on 15 th August 2007 (“the August Order”). Although in form it was an appeal against the whole of the August Order, it raised two points of substance, for both of which she obtained permission to appeal from Evans-Lombe J on her oral application on 17 th June 2008, a previous written application having been refused by him on paper.
The first and main point, to which I will refer as “the Legal Aid Point”, concerned the question when, during long and protracted litigation mainly in the Central London County Court, Mrs Mohammadi had been “a legally assisted person” within the meaning of sections 2(11) and 17(1) of the Legal Aid Act 1988, with the substantial but partial protection afforded by section 17 from liability to pay her opponent's costs. The second point, to which I will refer as “the 75% Point”, consisted of her challenge to an earlier detailed assessment by Master Campbell of her costs incurred in a partially successful hearing in the Court of Appeal, pursuant to a judgment given on 16 th July 2003.
On the morning of the hearing of this appeal, Mrs Mohammadi lodged supplementary grounds of appeal alleging various forms of procedural misconduct ranging from bias to a failure to consider the disproportionate positions of the parties, including a reference to Article 6 of the Human Rights Act 1998, for none of which she had obtained permission, and none of which in the event she pursued either by adducing evidence or making submissions. I need therefore say nothing further about them.
Mrs Mohammadi did however at the same time also lodge what purported to be an affidavit tendering fresh evidence in relation to both the Legal Aid and 75% Points. For the Respondents, Shellpoint Trustees Ltd and Anston Investments Ltd, Mr Howard Lederman of counsel sensibly made no objection to the court reading the affidavit, and the exhibits (only some of which were before Master Campbell) on a de bene esse basis, while submitting that Mrs Mohammadi had shown no sufficient grounds for the admission of fresh evidence on appeal.
In my judgment Mrs Mohammadi did not show sufficient reason for adducing fresh evidence on appeal, but in any event the contents of her affidavit and those of its exhibits which were new added nothing of real weight to the relevant evidence before Master Campbell which I shall shortly describe, and to the extent that it sought to put a different gloss on the relevant facts, it was unpersuasive.
The Legal Aid Point
The facts
Mrs Mohammadi is and has at all material times been the long leasehold owner of a flat known as 8 Eaton Hall, London NW3 2DW, and the Respondents were at all relevant times her landlords. Litigation between them about the flat began as long ago as April 1993. Mrs Mohammadi claimed damages for breach of repairing covenants, and the Respondents claimed forfeiture based upon alleged failures to pay services charge and ground rent. The main features of that litigation were a trial in the Central London County Court leading to judgments in May, June and October 2002, relating respectively to repairing and subsidence, credit for decoration works and forfeiture respectively, together with an appeal to the Court of Appeal in 2003 in which Mrs Mohammadi was partially successful, obtaining, as I have mentioned, an order for payment of 75% of her costs by the Respondents.
Mrs Mohammadi obtained public funding for her litigation by means of three overlapping Legal Aid Certificates, to which it is convenient to refer by using the letter at the end of each, namely W, E and J. For present purposes, it is only Certificates W and E which matter, and their summary histories may be described as follows:
Certificate W
This was granted on 12 th September 1990, discharged on 5 th November 1996, reinstated on 16 th December 1996, discharged again on 23 rd March 2001, reinstated again on 1 st October 2001 and finally discharged on 24 th July 2002.
Certificate E
This was granted on 20 th October 1993, discharged on 19 th June 2001, reinstated on 1 st October 2001 and finally discharged on 24 th July 2002.
I take these details from a letter to Mrs Mohammadi from the Legal Services Commission dated 14 th September 2005. That letter stated in clear terms that Mrs Mohammadi was not “Publicly Funded” under Certificates W and E during the periods between discharge and reinstatement.
In a later letter to Mrs Mohammadi dated 6 th July 2007, the Legal Services Commission said this, in the last paragraph:
“One other matter needs to be added to the above information – at various times your certificates were discharged and then reinstated. I should point out that the reinstatement of the certificates following a discharge means they were deemed never to have been discharged and as far as costs protection is concerned, you would have been covered for work done within the scope of the certificates from their original issue dates (23/8/1990 and 20/10/1993 respectively) until their final discharge dates (24/7/2002 for A/N/3 and 16/ 4/2004 for A/N/2).”
It is apparent that the references to Certificates A/N/3 and A/N/2 are references to amended versions of Certificates W and E respectively, although for some unexplained reason, the final discharge date for Certificate E appears to be different. Nothing turns on the discrepancy.
It is necessary to focus closely on Mrs Mohammadi's legal representation during the periods between successive discharges and reinstatements of the two Certificates, and shortly prior to their final discharge in (or after) 2002. On 7 th November 1996, two days after the first discharge of Certificate W, Mrs Mohammadi's then solicitors told the Respondents' solicitors that she would be proceeding thereafter in the case as a litigant in person. This appears as a dated item in the Respondents' detailed bill submitted for taxation (“the Bill”) at page 12. There was a hearing on 14 th November at which it is to be inferred that Mrs Mohammadi appeared in person (Bill page 19). Mr Lederman, who appeared at that hearing and the hearing before Master Campbell in August 2007, recalled her having done so. On 19 th December 1996 the Respondents' solicitors received a Notice of Acting from John R Bottrill as solicitor for Mrs Mohammadi, together with notice of reinstatement of legal aid (which had occurred in relation to Certificate W three days earlier (Bill page 21)).
On 9 th July 1999 the Respondents' solicitors were notified that Mr A T Freer was acting for Mrs Mohammadi in place of John Bottrill. On 23 rd November 1999 they received a further notice of intention to proceed, notice of change of solicitor and notice of amendment to Mrs Mohammadi's legal aid certificate (Bill page 26).
Certificate W was discharged on 23 rd March 2001, and on 14 th June Mrs Mohammadi, acting at this stage in person, made an application to transfer an aspect of the dispute to the Leasehold Valuation Tribunal. She told me that she did so with the assistance of a law student (Bill page 32). On 19 th June, Certificate E was also discharged. On 5 th October 2001 the Respondents' solicitors received a further notice of acting for new solicitors on Mrs Mohammadi's behalf, both Certificates having been reinstated on 1 st October (Bill page 35).
On 30 th May 2002 there was a hearing in the Central London County Court at which Mrs Mohammadi was represented by Goldkorn Davies Mathias. Mrs Mohammadi told me that as a result of events which occurred then and shortly thereafter, she lost confidence in those solicitors and discharged them. There followed a hearing on 10 th June when Mrs Mohammadi was, briefly, acting in person. In July 2002 she retained Dean & Dean on a privately funded basis and, as a result, Certificates W and E were finally discharged on 24 th July 2002. Mrs Mohammadi does not claim to have been legally aided at any time thereafter.
The Issue
Mrs Mohammadi's case, put both by her costs draftsman Mr Jones to Master Campbell in 2007 and, ably by herself to me, was that she had been a “legally assisted party” within the meaning of section 17 of the 1988 Act for the whole of the period between September 1990 and 24 th July 2002. She said that during the periods when she had been without legal representation in 1996 and 2001 she had taken no active steps herself. In the words of Mr Jones' submission to Master Campbell (recited at paragraph 5 of his judgment):
“She was not “acting”, she was simply holding the line until she could find another solicitor. She was certainly not conducting litigation, she was simply appearing at hearings until she could find a new firm of solicitors to take her case, the old ones having been dismissed by her or ceased acting for her for some other reason.”
Understandably, she relied heavily on the last paragraph of the Legal Services Commission's letter of 6 th July 2007, which I have quoted above, in support of the submission that, where a legal aid...
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