R v Greenwich London Borough Council, ex parte Lovelace (No 2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE NEILL,LORD JUSTICE STOCKER,LORD JUSTICE STAUGHTON
Judgment Date31 Jul 1991
Judgment citation (vLex)[1991] EWCA Civ J0731-8
Docket Number91/0828

[1991] EWCA Civ J0731-8

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

(Glidewell L.J. and Tucker J.)

Royal Courts of Justice

Before:

Lord Justice Neill

Lord Justice Staughton

Lord Justice Stocker

91/0828

The Queen
and
London Borough of Greenwich
Ex Parte (1) Serena Lovelace
(2) Christopher Fay

MR. ANTHONY WHITE (instructed by the Solicitor to the Council) appeared on behalf of the Appellant.

MR. DUNCAN MATHESON Q.C. (instructed by Ms. Sheelagh Robinson, Solicitor) appeared on behalf of the Respondent.

LORD JUSTICE NEILL
1

These are applications by the London Borough of Greenwich pursuant to section 18 of the Legal Aid Act 1988 for orders for costs against the Legal Aid Board ("the board"). The applications are made in proceedings brought against the council for judicial review.

2

In the first set of proceedings the applicant for judicial review was Mrs. Serena Lovelace. In her original application dated 29th April 1988 Mrs. Lovelace sought judicial review of no less than seven decisions of the council and of its committees.

3

In the second set of proceedings the applicant for judicial review was Mr. Christopher Fay. In his original application dated 19th January 1989 Mr. Fay sought judicial review of three decisions of the council.

4

The two sets of proceedings were heard together by the Divisional Court in June 1989. During the course of the hearing the scope of the proceedings by both applicants was considerably reduced and in its final form after amendment the relief sought was limited to a declaration relating to a resolution passed by the council concerning the housing committee of the council of which both applicants had been members. The relief sought was in these terms (see [1990] 1 W.L.R. 18 at page 23):

"A declaration that the respondent council acted ultra vires by resolving on 10th February 1988 that: (1) the membership of the housing committee of the council be reduced from 24 to 18 members; (2) the 12 councillors listed in paragraph 66 of the minutes of the council meeting of 10 February 1988 be appointed to the housing committee; (3) the six councillors listed in paragraph 68 of the said minutes be appointed to the housing committee."

5

By a judgment dated 22nd June 1989 ( [1990] 1 W.L.R. 18) the Divisional Court dismissed the two applications with costs but determined that neither of the applicants should be under any present liability in respect of those costs. In the case of Mrs. Lovelace certain cross-undertakings were given to the court relating to the disclosure of documents. These cross-undertakings and the disclosure of documents concerned two of the decisions which had been challenged in the original application but where the challenge had been disposed of by agreement in the course of the hearing. In addition applications by the council for orders that their costs should be paid out by the Legal Aid Board were adjourned. These applications for costs were made under section 13 of the Legal Aid Act 1974. The relevant provisions of sections 13 and 14 of the 1976 Act have been replaced since 1st April 1989 by those contained in section 18 of the Legal Aid Act 1988.

6

Mrs. Lovelace and Mr. Fay then appealed to the Court of Appeal. The notices of appeal were served on 1st August 1989. At some date thereafter, however, Mr. Fay abandoned his appeal and took no further part in any of the proceedings.

7

The appeal by Mrs. Lovelace was heard by the Court of Appeal in October 1990. By a judgment dated 12th December 1990 the appeal was dismissed with costs ( [1991] 1 W.L.R. 506). It was further ordered that the order for costs against Mrs. Lovelace should not be enforced without the leave of the court.

8

It is in these circumstances that the council has made the present applications for orders for costs against the Legal Aid Board.

9

It will be convenient to start by setting out the relevant statutory provisions. Section 18 of the 1988 Act (so far as is material) is in these terms:

"(1) This section applies to proceedings to which a legally assisted person is a party and which are finally decided in favour of an unassisted party.

(2) In any proceedings to which this section applies the court by which the proceedings were so decided may, subject to subsections (3) and (4) below, make an order for the payment by the Board to the unassisted party of the whole or any part of the costs incurred by him in the proceedings.

(3) Before making an order under this section, the court shall consider what order for costs should be made against the assisted party and for determining his liability in respect of such costs.

(4) An order under this section in respect of any costs may only be made if—

  • (a) an order for costs would be made in the proceedings apart from this Act;

  • (b) as respects the costs incurred in a court of first instance, those proceedings were instituted by the assisted party and the court is satisfied that the unassisted party will suffer severe financial hardship unless the order is made; and

  • (c) in any case, the court is satisfied that it is just and equitable in all the circumstances of the case that provision for the costs should be made out of public funds.

  • (5)…

  • (6)…

(7) For the purposes of this section proceedings shall be treated as finally decided in favour of the unassisted party—

  • (a) if no appeal lies against the decision in his favour;

  • (b) if an appeal lies against the decision with leave, and the time limited for applications for leave expires without leave being granted; or

  • (c) if leave to appeal against the decision is granted or is not required, and no appeal is brought within the time limited for appeal;

and where an appeal against the decision is brought out of time the court by which the appeal (or any further appeal in those proceedings) is determined may make an order for the repayment by the unassisted party to the Board of the whole or any part of any sum previously paid to him under this section in respect of those proceedings.

(8)…

(9) For the purposes of this section 'court' includes a tribunal."

10

The applications by the council are

  • (a) in respect of the costs of the proceedings by Mrs. Lovelace both in the Divisional Court and in the Court of Appeal, and

  • (b) in respect of the costs of the proceedings by Mr. Fay in the Divisional Court and any costs incurred as a result of the service of the notice of appeal by Mr. Fay.

11

It is common ground that the applications raise the following questions for decision:

  • (1) Whether, as only one of the seven decisions originally in issue before the Divisional Court formed the subject of the appeal to the Court of Appeal, the Court of Appeal should deal with the whole of the application relating to the costs in the Divisional Court in the Lovelace proceedings. A similar question arises as to the costs in the Divisional Court in the Fay proceedings.

  • (2) Whether the Divisional Court is "a court of first instance" for the purpose of section 18(4)(b) of the 1988 Act.

  • (3) Whether the council would "suffer severe financial hardship" unless an order were made in respect of the costs incurred by the council in the Divisional Court.

  • (4) Whether it is "just and equitable" in all the circumstances of the case that provision for the costs should be made out of public funds.

  • (5) Whether an order can be made in respect of any costs in the Court of Appeal in the Fay proceedings.

12

The first of these questions can be dealt with very shortly. It is clear from the wording of section 18(1) and (2) that any order for the payment of costs by the board is to be made by the court by which the proceedings are "finally decided" in favour of the unassisted party. The point at which proceedings are to be treated as finally decided is laid down in section 18(7).

13

From the terms of these subsections it seems to me

  • (a) that once an appeal has been brought the lower court is functus officio; and

  • (b) that, save perhaps in exceptional circumstances, the word "proceedings" must be construed so as to cover all the claims included in the writ, summons, motion or other originating process by which the proceedings were begun.

14

Accordingly I am satisfied that this court can deal with all the costs incurred by the council before the Divisional Court.

15

The fifth question also can be dealt with shortly.

16

It seems clear that Mr. Fay served a notice of appeal on the council. But he did not take any further step nor did he, as far as I am aware, set the appeal down in accordance with R.S.C. Order 59, rule 5. At some stage he simply abandoned the appeal. Nevertheless I am satisfied that in the circumstances he "brought" an appeal and that therefore the Court of Appeal has...

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