Orchard v South Eastern Electricity Board
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,MR. JUSTICE STEYN,LORD JUSTICE DILLON,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 13 November 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1113-2 |
| Docket Number | 86/1014 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 November 1986 |
[1986] EWCA Civ J1113-2
The Master Of The Rolls
(Sir John Donaldson
Lord Justice Dillon
and
Lord Justice Croom-Johnson
86/1014
1978 O. No. 001
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CANTERBURY DISTRICT REGISTRY
(MR. JUSTICE STEYN)
Royal Courts of Justice.
MR. JONATHAN PLAYFORD, Q.C. and MR. ROGER EASTMAN (instructed by Messrs. Roderick O'Driscoll & Partners of Maidstone) appeared on behalf of the (Plaintiff) Respondent.
MR. DERMOD O'BRIEN, Q.C. and MR. ANDREW COLLENDER (instructed by Messrs. L. Watmore & Co.) appeared on behalf of the (Defendant) Appellant.
Mr. Orchard, assisted by solicitors and counsel under the Legal Aid Act 1974, brought proceedings against the Board claiming damages for negligence and breach of statutory duty. After a hearing which lasted for twelve days, Mr. Justice Steyn dismissed Mr. Orchard's claim with costs but, in the light of the fact that his means were such that he had not been required to make any contribution under the legal aid scheme, stayed execution of that part of the order which related to costs until further order.
In the light of section 13(3)(b) of the Act and of the decision of this court in Kelly v. London Transport Executive [1982] 1 W.L.R. 1055, it was appreciated by the defendants and their professional advisers that an application for an order that the costs of the defendants should be paid out of the legal aid fund was doomed to failure. Notwithstanding that they had incurred substantial costs—the plaintiff's own costs were taxed at £54,000 and the defendants' costs were likely to have been comparable—they could not realistically submit that this would cause them "serious financial hardship." The defendants had from the outset contended that Mr. Orchard's claim was wholly without foundation. In default of being able to look to the legal aid fund for reimbursement, they applied for an order under R.S.C. Order 62 rule 8 that Mr. Orchard's solicitors be required to pay their costs of defending themselves against the claim.
The learned judge dismissed this application and the defendants now appeal. Before turning to the appeal itself, it is desirable that I should say a word about Order 62 rule 8. Sub-rule (1) merely confirms the ancient jurisdiction of the court to exercise control over its own officers, who include all who are admitted to the roll of solicitors. Their full title is indeed "Solicitor of the Supreme Court." The sub-rule is in the following terms:
"(1) Subject to the following provisions of this rule, where in any proceedings costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default, the Court may make against any solicitor whom it considers to be responsible (whether personally or through a servant or agent) an order -
(a) disallowing the costs as between the solicitor and his client; and
(b) directing the solicitor to repay to his client costs which the client has been ordered to pay to other parties to the proceedings; or
(c) directing the solicitor personally to indemnify such other parties against costs payable by them."
In making the application in the court below, Mr. Dermod O'Brien, Q.C, for the defendants, comprehensively condemned not only the plaintiff's leading and junior counsel, but "anybody else who has been involved in the handling of the plaintiff's case." In terms he claimed to make no distinction between them and submitted that it would be invidious for the court to do so. He continued: "I ask that the solicitor be ordered to pay the costs of this case, the court recognising that he may have claims over which he may see fit to exercise. Whether these are against counsel, against Mr. Saunders [a witness] or against others that have been engaged in this matter is not for me to say."
It is not clear to me what rights the solicitor would have against a witness, whether expert or otherwise, in respect of evidence given in court and the assertion of such a right, other than rhetorically, would raise an issue of considerable public interest and importance. When I enquired what rights the solicitor would have against counsel, I was referred to the judgment of Lord Denning M.R. in Kelly v. London Transport Executive(supra) at page 1064. He said:
"Over the weekend I have looked at the authorities in this matter. As a result, the principle is clear that a solicitor is under a duty, not only to his own client who is legally aided, but also to the unassisted party who is not legally aided. If the solicitor fails in that duty, the unassisted party is at liberty to call him before the court, whereupon the court can make an order that he is to make good any loss or expense caused to the unassisted party by any breach of it. This is well established. It is not confined to legally aided cases, but to all cases—an order to make the solicitor pay the costs of the other side. As Abbott C.J. said as long ago as 1822 in Blundell v. Blundell (1822) 5 B. & Aid. 533, 534, 'it will be a wholesome lesson to others…' Lord Hatherley L.C. said in In re Jones (1870) L.R. 6 Ch.App. 497, 499 that solicitors must
'not only perform their duty towards their own clients, but also towards all those against whom they are concerned, and that care should be taken to see that the litigation is the bona fide litigation of the client who instructs the solicitor, and not a litigation carried on altogether on the solicitor's account.' (Emphasis added).
This principle was emphatically affirmed by the House of Lords in Myers v. Elman [1940] A.C. 282, 290, where Viscount Maugham said:
'These cases did not depend on disgraceful or dishonourable conduct by the solicitor, but on mere negligence of a serious character, the result of which was to occasion useless costs to the other parties.' (Emphasis added).
These then are the duties of solicitors who act for legally aided clients. They must inquire carefully into the claim made by their own legally aided client so as to see that it is well-founded and justified—so much so that they would have advised him to bring it on his own if he had enough means to do so—with all the risks that failure would entail. They must consider also the position of the other side. They must not take any advantage of the fact that their own client is legally aided and so not able to pay any costs. They must not use legal aid as a means to extort a settlement from the other side. They must remember the position of the defendants and that he is bound to incur a lot of costs to fight the case. If a reasonable payment is made into court—or a reasonable offer is made—they must advise its acceptance. They must not proceed with the case on the chance of getting more. They must put out of their minds altogether the fact that, by going on with the case, they will get more costs for themselves. They must not run up costs by instructing endless medical experts for endless reports or by any unnecessary expenditure. They must not ask a medical expert to change his report at their own instance, so as to favour their own legally aided client or conceal things that they may be against him. They must not 'settle' the evidence of the medical experts as they did in Whitehouse v Jordan [1981] 1 W.L.R. 246, which received the condemnation of this court [1980] 1 All E.R. 650, 655, and of the House of Lords. As Lord Wilberforce said [1981] 1 W.L.R. 246, 256:
'…expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.'
All this is not only in regard to solicitors but also to counsel as well. We all know that the area committees depend largely on the opinion of counsel—as to whether legal aid should be given for the purpose or not, and as to whether the case should proceed further or not. So much so that counsel have a special responsibility in these cases. They owe a duty to the area committees who rely on their opinion. They owe a duty to the court which has to try the case. They owe a duty to the other side who have to fight it and pay all the costs of doing so. If they fail in their duty, I have no doubt that the court can call them to account and make them pay the costs of the other side. They will not be able to escape on the ground that it was work done by them in the course of litigation. They cannot claim the immunity given to them by Rondel v. Worsley [1969] 1 A.C. 191. That only avails them in regard to their own client. They have no immunity if they fail to have regard to their duty to the court and to the other side.
If these precepts are observed, I hope we shall in future have no more disgraces such as have attended this case. But for the reasons I have given, I would dismiss this appeal."
The circumstances in which these remarks came to be made were unusual. The issue in the appeal appears to have been confined to whether the L.T.E. could make good its claim to have its costs paid out of the legal aid fund. Certainly there is no trace in the report of any application by L.T.E. for an order against the solicitor. This part of the judgment was therefore obiter. Furthermore, it appears that the argument was concluded on the Friday and judgment given on the Monday, these remarks being based upon personal research conducted "over the weekend" without the benefit of argument from counsel. Neither Lords Justices Ackner nor O'Connor adverted to the topic in terms and I do not...
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