Re A. (Minors) (Abduction: Custody Rights) (No. 2) (pet dis)
| Jurisdiction | England & Wales |
| Judge | Lord Griffiths,Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle |
| Judgment Date | 25 June 1992 |
| Judgment citation (vLex) | [1992] UKHL J0625-2 |
| Date | 25 June 1992 |
| Court | House of Lords |
[1992] UKHL J0625-2
House of Lords
Lord Griffiths
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bridge of Harwich, and agree with his conclusions and his reasons for them.
My Lords,
In this appeal the House delivered judgment in favour of the defendant on 13 June 1991 [1991] 2 A.C. 476. The plaintiff had been legally aided throughout. The defendant initially bore his own costs, but was legally aided from 5 July 1990, before the conclusion of the proceedings at first instance, until the disposal of the appeal by the House. An order was then made that the costs incurred by the defendant in the High Court before the issue of his legal aid certificate be paid out of the Legal Aid Fund pursuant to section 18 of the Legal Aid Act 1988, but that the order be suspended to enable the Legal Aid Board to object if they wished. The Board has now objected.
The Board's first ground of objection raises an important question of principle which depends on the construction of section 18 of the Act of 1988 which provides, so far as material:
"(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….
(6) In this section 'costs' means costs as between party and party, and includes the costs of applying for an order under this section; and where a party begins to receive representation after the proceedings have been instituted, or ceases to receive representation before they are finally decided or otherwise receives representation in connection with party only of the proceedings, the reference in subsection (2) above to the costs incurred by the unassisted party in the proceedings shall be construed as a reference to so much of those costs as is attributable to that part."
The only other provision which I think I need cite is section 2(11) which provides:
"In this Act 'legally assisted person' means any person who receives, under this Act, advice, assistance or representation and, in relation to proceedings, any reference to an assisted party or an unassisted party is to be construed accordingly."
Mr. Utley submits on behalf of the Board that, on the true construction of section 18(1), power to make an order for payment of costs by the Board is only exercisable in favour of a person who is an unassisted party at the time when the relevant proceedings are finally decided, i.e. who is not then receiving legal aid. If this is right, it produces a very odd result. It means that a defendant who has incurred large costs both at trial and in the Court of Appeal in resisting a claim by a legally aided plaintiff, but who then receives legal aid in the House of Lords where he is finally successful, is ineligible for any award of costs against the Board. But conversely (as Mr. Utley did not feel able to dispute, although he did not formally concede the point) a defendant who is legally aided at first instance and in the Court of Appeal, but who for any reason then ceases to be aided and incurs the full costs of successfully resisting an appeal to the House of Lords, is eligible to recover those costs from the Board. It is difficult to think that Parliament intended the section to operate so capriciously and I would not construe it in that sense unless clearly...
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