Re C (Legal Aid: Preparation of Bill of Costs)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD JUSTICE LAWS |
| Judgment Date | 20 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1220-23 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B1/2000/2428 |
| Date | 20 December 2000 |
[2000] EWCA Civ J1220-23
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BLACKBURN COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The President
Lord Justice Laws and
Lady Justice Hale
Case No: B1/2000/2428
Mr D. Burrows (instructed by Farleys) for the Appellant
Mr J. Morgan (instructed by the Legal Services Commission) for the Respondent
The issue raised in this appeal is what, on a legal aid assessment in family proceedings, a solicitor may claim for preparing the bill of costs. The sum claimed in this case was only £59. Considerable sums however are at stake annually, both for solicitors practising in family law and for the Legal Services Commission. The case also raises a question of some constitutional interest on the status of the Practice Directions accompanying the Civil Procedure Rules.
The facts
Farleys in Blackburn, through their partner Kathryn Hughes, acted for a child in care proceedings. Legal aid was granted on 4 Feb 1999. The proceedings were completed on 4 May 1999 with the usual order for legal aid assessment. In due course a bill was submitted to the county court to be assessed pursuant to that order and in accordance with the Civil Legal Aid (General) Regulations 1989, regulation 107. It contained two relevant items:
'20.Checking and verifying bill (Partner) prior to signing
51.75
21.Preparation of bill (inhouse Costs Draftsman) at prescribed legal aid rates pursuant to Part 43, para 2.16 of Civil Procedure Rules 1998 (1 hour)
59.00'
The Bill was provisionally assessed by a deputy district judge, who allowed both items but reduced item 20 by £25.00."
On 2 August 1999 Miss Hughes appeared before District Judge Ashton on an assessment hearing. He restored item 20 in full, but indicated that he proposed to disallow item 21. She wrote making representations: the Civil Procedure Rules applied to the assessment of costs in legally aided family proceedings just as they did in any other proceedings, and under the Costs Practice Direction a claim for the reasonable costs of preparing the bill was now allowed. District Judge Ashton affirmed his decision on 17 September 1999, explaining his reasons in a memorandum dated 16 September 1999: in summary, the bill had been prepared under the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 (the 'Remuneration Regulations'), which did not allow for this item. He could see no basis for suggesting that the Civil Procedure Rules allowed items to be included which did not appear in the regulations or, as in this instance, charged twice.
The solicitors appealed to the circuit judge. On 9 June 1999 His Honour Judge Gee delivered a written judgment. He held that solicitors could charge for preparation of the bill, but limited to the maximum amount specified in the 1991 Remuneration Regulations, namely £51.75. Hence he restored item 21 for that amount. He also held that a solicitor could charge as a separate matter for checking and signing the bill before taxation. (It is not clear either from his judgment or from his order how much he allowed for that item, £51.75 having been charged in the bill.)
Hence, the solicitors now appeal to this Court against the limitation of the costs of preparation to £51.7The actual sum in issue is only £7.25, but His Honour Judge Gee would have given permission to appeal. He was unable to do so because it is a second tier appeal for which only the Court of Appeal can give leave (see Access to Justice Act 1999, section 55(1)). Permission was granted by Thorpe LJ on 8 August 2000.
The Legal Services Commission cross appeal, with the permission of this court, against the award of a separate sum for checking and verifying the bill.
The legal aid legislation
It is convenient to refer to the legislation in force at the relevant time in the present tense. The Legal Aid Act 1988, in section 6(1), provides for the establishment of the legal aid fund. Section 6(2) then provides:
'Subject to regulations, there shall be paid out of the fund —
(a) such sums as are, by virtue of any provision of or made under this Act, due from the Board in respect of remuneration and expenses properly incurred in connection with the provision, under this Act, of advice, assistance, mediation or representation;
Section 15(6) provides that it is not, apart from any contribution he is required to make, for the assisted person to pay for his representation ' . . and it shall be for the Board to pay his legal representative.' Section 15(7) then provides:
'The Board's obligation under subsection (6) above is —
(a) in the case of representation provided in pursuance of a contract between the Board and the legally assisted person's legal representative, to make such payments as are due under the contract; and
(b) in the case of representation provided otherwise than in pursuance of such a contract, to make such payments as are authorised by regulations.'
Section 36 of the 1988 Act provides that any power to make regulations under the Act is exercisable by statutory instrument, some such regulations (including these) being subject to annulment by negative resolution in either House of Parliament, others requiring positive approval in each House.
The Civil Legal Aid (General) Regulations 1989, SI 1989 No 339 as amended, provide in regulation 107A:
'(1) This regulation applies on any assessment, review or taxation of the costs of an assisted person in proceedings where the costs are, or may be, paid out of the fund.
(2) Costs to which this regulations applies shall be determined on the standard basis subject to —…
(b) the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 in proceedings to which those Regulations apply.'
The Legal Aid in Family Proceedings (Remuneration) Regulations 1991, SI 1991 No 2038 as amended, provide in regulation 3:
'(1) The sums to be allowed to legal representatives in connection with family proceedings shall determined in accordance with these Regulations, Part XII of the General Regulations, the Family Proceedings (Costs) Rules 1991 and [certain paragraphs of Schedule 1 to those Rules].' …
(2) Subject to the following paragraphs, the amounts to be allowed on determination under this regulation shall be —
(a) in accordance with Schedule 1 where the certificate was issued in relation to care proceedings; … '
In fact, regulation 3(4)(bb) substitutes the rates in Schedule 1A for certain items if the work was done under a franchising contract with the Board, as this work was. Schedule 1A contains two relevant items:
'17.Preparing the bill (where allowable) and completing the taxation (excluding preparing for and attending the taxation).
[County court]£32.50–51.75
18.Preparing for and attending the taxation (including travelling and waiting). [County court]Discretionary'
Judge Gee explained that '[h]istorically, solicitors have not, on taxation [now assessment] of costs, been able to claim for the preparation of their bills of costs.' This was because the 'costs of preparing a bill were always regarded as part of a solicitor's overheads and thus reflected in the charging rate allowed. Such costs were only allowed in exceptional circumstances. See Johnson v Reed Corrugated Cases Ltd [1992] 1 All ER 169.' Hence they were not allowed in assessments under the 1991 Remuneration Regulations: the view taken was that 'where allowable' in item 17 excluded them unless there were exceptional circumstances. The solicitor's time in checking and verifying the bill prepared by the costs draftsman could, however, be charged.
The Civil Procedure Rules and Practice Directions
The advent of the Civil Procedure Rules 1988 (the CPR) brought about a fundamental change in the general practice. Parts 43 to 48 of the CPR deal with costs, but only Parts 43, 44 and 47 are relevant here. Part 43 is headed 'Scope of Costs Rules and Definitions', Part 44 'General Rules about Costs, and Part 47 'Procedure for Detailed Assessment of Costs and Default Provisions'. There is a 'Practice Direction about Costs', subheaded 'Supplementing Parts 43 to 48 of the Civil Procedure Rules' and continuing with Directions relating to each Part (it is all one document in the official version published by the Lord Chancellor's Department). The 'Directions relating to Part 43 —Scope of Costs Rules and Definitions' deal in Section 2 with the 'Form and Contents of Bills of Costs.' This contains the crucial paragraph:
'2.16A claim may be made for the reasonable costs of preparing and checking the bill of costs.'
The costs rules in the CPR apply to legal aid (or public funding) assessment as well as to inter partes assessments. The CPR generally do not apply to family proceedings. However, the costs rules have now been applied in family proceedings (with exceptions immaterial for this purpose) by the Family Proceedings (Miscellaneous Amendments) Rules 1999, SI 1999 No 1012, which revoked the Family Proceedings (Costs) Rules 1988, SI 1988 No 1328. The President's Practice Direction of 22 April 1999, reported at [1999] 3 All ER 380, and issued with the approval and concurrence of the Lord Chancellor, directed that, when the CPR came into force on 26 April 1999, the Practice Direction about Costs, Supplementing Parts 43 to 48 of the Civil Procedure Rules should apply to all proceedings to which the Family Proceedings Rules 1991 apply, as they did in this case, and to proceedings in the Family Division.
The conclusion drawn by His Honour Judge Gee was that, as a matter of principle, the costs of preparing a bill...
To continue reading
Request your trial
-
Donaldson v O'Sullivan
...from the Practice Direction. The Practice Direction cannot override the Rules and the Rules cannot override the Act (see Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602). He is also right to point out that all of the cases to which I have referred were decisions at first ins......
-
U (A Child) v Liverpool City Council
...or deleting the item altogether. 48 The status of a practice direction has been authoritatively delineated by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 at para 21, May LJ in Godwin v Swindon Borough Council [2001] EWCA Civ 1478 at [11], [2002] 1 WLR 997, ......
-
R (Ewing) v Department of Constituional Affairs
...in my view, at best a weak aid to the interpretation of the rules themselves." 16 In Re C (Legal Aid: Preparation of a Bill of Costs) [2001] 1 FLR 602 it was argued on behalf of the appellant that the Practice Direction about costs supplementing Parts 43–48 of the Rules had the same force i......
-
Derby City Council v BA
...Secretary of State for Communities and Local Government [2009] 1 WLR 2274 at [10] and In re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602 at [18]). In the context of family proceedings, the process giving rise to non-statutory practice guidance was described as follows by th......