Re B and H (Minors) (Costs: Legal Aid)
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1993 |
| Court | Family Division |
WARD, J SITTING WITH DISTRICT JUDGE LAMB AND MR PHILIP RICHARDSON AS ASSESSORS
Costs – taxation – review – wardship proceedings – parents separately represented – no conflict of interest – Legal Aid Board authorizing separate representation – trial Judge stating that duplication of representation had added to costs and recommending that consideration should be given to a reduction of costs allowed – costs reduced by 50 per cent on taxation – whether reduction of costs justified.
In 1988, following a case involving ritualistic sexual abuse of children, the mother's daughter was removed from her and placed in care. She claimed to have severed all connexions with the extended family at the heart of the abuse. She subsequently met and formed a new relationship and gave birth to a child in April 1989. The local authority were concerned that as the mother had failed to protect her first child she could not be relied upon to protect the second child and commenced wardship proceedings. In the course of their investigations into the father's background they discovered a history of sexual abuse and incest in the family. The mother and father married after the commencement of the wardship proceedings. In those proceedings they were separately represented.
In October 1989 a registrar expressed concern that the parents were separately represented. He perceived at that early stage that there was no conflict of interest and directed the solicitors for each party to report their position to the Legal Aid Board. Both firms of solicitors did so by letter and both asserted that although their case was a united one in that both parents wished to have joint care and control of their child, the case against each of them raised separate issues. In reply an officer in the legal aid area office stated that a separate legal aid certificate would always be issued where there were two defendants even if their interests were identical and, further, that each of the two defendants were entitled to consult a solicitor of their own choice.
On the final hearing the parents were represented by two solicitors and two counsel. The Judge observed that there was no conflict of interest between the parents. He expressed surprise that separate representation had been authorized by the legal aid area office. He also expressed surprise at the response from the officer at the legal aid area office when the two solicitors reported the situation to that office. The Judge stated that, although the case had been properly conducted by the two counsel who had ensured that the inquiry was kept to relevant matters, the duplication of representation might well have added considerably to the costs of the litigation. The Judge caused the matter to be reported to the legal aid office in London. In reply, a representative of the legal department wrote
stating that if parties in wardship proceedings who had the same interests applied for legal aid through different solicitors there were a variety of approaches the area office could make to ensure that only one firm acted with the benefit of legal aid, although for technical reasons a separate legal aid certificate had to be issued to each party. The representative went on to state that the original applications by the parents were submitted on different days by different solicitors and in different names (as the parents were not then married); that the applications were not linked until the registrar's comments were brought to the attention of the area office by the solicitors; and that, as a great deal of work had been done by both solicitors, the area office had taken the view that no action could properly be taken at that stage. Finally, the representative from the London office observed that although separate certificates had been issued to different firms to act for two parties with identical interests, that did not make it obligatory for those firms to continue separate representation and that all that was required was a simple amendment to one of the certificates.
The Judge accepted the explanation from the London office and recommended that consideration should be given to the reduction of costs allowed to reflect a wholly unnecessary duplication of legal advisers.
At taxation a district judge disallowed half of all the profit costs of each of the solicitors. He also reduced the fees of the mother's counsel to bring them more in line with those of the husband's counsel.
The solicitors applied for a review of the taxation.
Held – (1) As to counsel's fees, the district judge had erred in saying that counsel faced the same task. The father's case was substantially less difficult and less complex than the mother's case. Counsel for the mother had a more onerous task and this and his seniority (20 years' call as compared with 11 years' call of the father's counsel) justified some disparity in the relative brief fee. The mother's counsel had claimed a brief fee of £2,500 which had been taxed down to £1,000. In the circumstances the court substituted its own assessment fixed at £1,750.
(2) As to the reduction in the solicitors' fees for the care and conduct of the case, the district judge had made some not very substantial reductions and had commented that many of the attendances on the client appeared to have been of a welfare nature and had not advanced the case. In this type of distressing case it was inevitable that there was an element of welfare work in the attendance on the distraught and disadvantaged client. Kept within reasonable bounds that service must be remunerated but was only permissible in order that the client, already under pressure, might be capable of understanding the solicitor's advice so he could give informed instructions. The appropriate test was that the solicitor must give his legally aided client the same advice as he would give to a client of adequate private means. Counsel was in no different position from his solicitor. In the present case the district judge had correctly taken an objective overall view and court agreed with the not very substantial reductions he had made.
(3) As to the reduction in costs by 50 per cent for duplication of effort, any unnecessary duplication and waste of time would be viewed with intense disfavour. Those wastes were the enemies of justice. The district judge had correctly held that a competent solicitor would have recognized that the involvement of two firms was inappropriate and inefficient from the point of view of the parents themselves, and that had the parents not been legally aided but fee-paying clients the solicitors would have been in clear breach of the professional duty. However, on the basis that neither solicitor had informed his client that it made good sense not to involve them both and had not suggested that they should make their election between them, it would be assumed that there was a breach of their duty to the client. However, that was an artificial view of the realities of the situation. The paymaster was the legal aid fund. The solicitors had put their dilemma to the Legal Aid Board and the
board had unequivocally confirmed that each solicitor might continue to act for his client under the terms of the legal aid certificate. It was nonsense, as stated by both the representatives of the area office and the representative of the London office, that, as a great deal of work had been done, no action could have properly been taken when the solicitors wrote to the area office as directed by the registrar. Further, the representative of the London office of the Legal Aid Board did not indicate what approach the board could take to ensure that only one firm acted. Nor did that individual indicate what simple amendment to one of the legal aid certificates could have been made lawfully to impose a change of solicitors upon one of the parties and it was doubtful whether the board had the power to do so. Although it might be said to be a cause for concern that two firms should be engaged in a total duplication of work at the public expense, the court had no power to control this matter when parents were necessary parties and their participation in the hearing could not be restricted. Indeed, there might be good reasons why it should not be restricted and there could well be disadvantages arising from forcing parents to instruct one solicitor and one counsel. In the present case it could not be said that the solicitors had acted unreasonably as the Legal Aid Board had sanctioned their acting separately for each client. In those circumstances the decision of the district judge to reduce their costs was wrong.
Statutory provisions referred to:Legal Aid and Advice Act 1949, s 1(7)(a).
Supreme Court Act 1981, s 51(6).
Legal Aid Act 1988, ss 4(6), 15, 31, 32(1).
RSC Ord 62, rr 10, 11, 12 and 35.
Matrimonial Causes (Costs) Rules 1988 (SI 1988/1328), rr 14, 15 and 16.
Civil Legal Aid (General) Regulations 1989 (SI 1989/339), regs 12, 28(1), 34, 66, 67(2) and 109.
Cases referred to in judgment:Arab Monetary Fund v Hashim & Others (No 8) (1994) 6 Admin LR 348.
Ashmore v Corporation of Lloyds [1992] 1 WLR 446.
Clark Boyce v Mouat [1993] 4 All ER 268.
Francis v Francis and Dickerson [1956] P 87; [1955] 3 WLR 973; [1955] 3 All ER 836.
M (Minors) (Sexual Abuse: Evidence), Re[1993] 1 FCR 253.
Oxfordshire County Council v M[1994] 1 FCR 753.
Storer v Wright [1981] QB 336; [1981] 2 WLR 208 CA
Mark Rogers for both solicitors.
MR JUSTICE WARD.We have before us two summonses under RSC Ord 62, r 35 to review the taxation of the bills of costs of solicitors and counsel separately instructed by the first defendant and by the second defendant to an originating summons in wardship issued by the county council.
The background is this. In 1988 Booth, J determined a ghastly case of ritualistic sexual abuse notorious in Nottinghamshire. The first defendant mother was one of the defendants in those proceedings which resulted in her...
To continue reading
Request your trial