Raftopoulou v Revenue and Customs Commissioners
| Jurisdiction | UK Non-devolved |
| Judgment Date | 13 November 2015 |
| Neutral Citation | [2015] UKUT 630 (TCC) |
| Date | 13 November 2015 |
| Court | Upper Tribunal (Tax and Chancery Chamber) |
Judge Roger Berner, Judge Swami Raghavan
Michael Thomas, acting pro bono appeared for the Appellant; and
Christopher Stone and Matthew Sellwood, instructed by the General Counsel and Solicitor to HM Revenue and Customs, appeared for the Respondents
Procedure Costs Whether the tribunal has power to order a payment in respect of pro bono costs Legal Services Act 2007 (LSA 2007), s. 194; Tribunals, Courts and Enforcement Act 2007 (TCEA 2007), s. 25 and 29 Held No such power in the tribunal Application refused.
The Upper Tribunal (UT) refused a taxpayer's application for costs to be paid by HMRC in respect of her pro bono representation at her successful UT appeal. The UT found that it did not have the power to make such an order, but expressed hope that urgent consideration would be given to allowing the UT to be given such a power.
This costs application followed the UT decision in Raftopoulou v R & C Commrs TAX[2015] BTC 532, in which Dr Raftopoulou successfully appealed against HMRC's refusal to allow her claim for overpayment relief. At the appeal Dr Raftopoulou was represented pro bono by Mr Thomas, who made a prospective application for costs which the UT decided that it would hear further argument on before making a decision, hence this further decision.
The UT noted that the Legal Services Act 2007 (LSA 2007), s. 194(3) authorised payments in respect of pro bono representation, but only in civil courts which were defined in s. 194(10) as meaning the Supreme Court (when dealing with a civil appeal), the civil division of the Court of Appeal, the High Court and the county court. As civil courts were defined by reference to particular jurisdictions, and did not include the UT, the UT found that that limited the exercise of any power under s. 194. The UT also found that the jurisdictional limitation could not be overridden by the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007), s. 25 (which provided the UT with certain powers of the High Court or Court of Session). Nor could any power to award costs, whether in TCEA 2007, s. 29 or in the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), be construed so as to provide power, in a case where there were no costs incurred by a pro bono party, to make an order for payment such as that in LSA 2007, s. 194.
Accordingly the UT found that it did not have the power to make an order for payment in respect of pro bono representation, and Dr Raftopoulou's application had to be refused.
The UT concluded by expressing its hope that urgent consideration be given to the recommendation of the Costs Review Group in their report to the Senior President of Tribunals, Costs in Tribunals, in December 2011, that the power to make pro bono costs awards should be extended to tribunals.
It is disappointing that the costs of pro bono representation in this case could not be ordered to be paid by HMRC. It is however hoped that the UT's call for extending the power to make pro bono costs awards to tribunals will be acted upon as a matter of urgency to correct this apparent unfairness.
[1] We have before us an application for pro bono costs to be awarded against the Respondents, HMRC, consequent upon the successful appeal of the Appellant, Dr Raftopoulou, which is reported at [2015] BTC 532, in which Dr Raftopoulou was represented pro bono by Mr Thomas, instructed by the Bar Pro Bono Unit following assistance from the Revenue Bar Association. The application raises an important question as to whether this tribunal has the power to make such an order. We are grateful, therefore, for the written submissions we have received from both parties.
[2] The expression pro bono costs does not in fact describe costs as such. It is used as a convenient short expression to refer to payments in respect of pro bono representation which are authorised to be made by s 194(3) of the Legal Services Act 2007 (LSA). Section 194 (as amended) provides, so far as is material:
(1) This section applies to proceedings in a civil court in which
a) a party to the proceedings (P) is or was represented by a legal representative (R), and
b) R's representation of P is or was provided free of charge, in whole or in part.
(3) The court may order any person to make a payment to the prescribed charity in respect of R's representation of P (or, if only part of R's representation of P was provided free of charge...
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