R v Greenwich London Borough Council, ex parte Lovelace and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date31 July 1991

Court of Appeal

Before Lord Justice Neill, Lord Justice Stocker and Lord Justice Staughton

Regina
and
Greenwich London Borough Council, Ex parte Lovelace and Another

Local authority - legal costs - availability of legal aid

Council fails to prove severe financial hardship

There was no reason in principle why a local authority or any other large body should not be able to establish that the amount expended on costs in legal proceedings placed an exceptional burden on its resources and that it would suffer severe financial hardship unless the Legal Aid Board paid the costs.

The Court of Appeal so held in a reserved judgment when allowing in part 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 arising out of proceedings for judicial review brought against it by Mrs Serena Lovelace and by Mr Christopher Fay.

The Queen's Bench Divisional Court had dismissed the two applications with costs (The Times June 23, 1989; [1990] 1 WLR 18) but determined that neither of the applicants should be under any liability in respect of those costs.

Mrs Lovelace's subsequent appeal was dismissed with costs by the Court of Appeal (The Times December 17, 1990; [1991] 1 WLR 506). The order for costs against Mrs Lovelace was ordered not to be enforced without the leave of the court.

Mr Antony White for Greenwich; Mr Duncan Matheson, QC, for the Legal Aid Board.

LORD JUSTICE NEILL said that it was clear from the wording of section 18(1) and (2) of the 1988 Act that any order for the payment of costs by the Legal Aid Board was to be made by the court by which the proceedings were finally decided in favour of the unassisted party.

The point at which proceedings were to be treated as finally decided was laid down in section 18(7).

Once an appeal had been brought, the lower court was functus officio and, save in exceptional circumstances, the word "proceedings" in those subsections had to 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.

The question whether the Divisional Court was to be regarded as a court of first instance for the purpose of section 18(4) of the Act depended on the nature of the proceedings and the status of the decision which was under review.

In the present case, the court of first instance for the purpose of section 18(4) was the Divisional Court which heard the...

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