Roshan Ghising (Claimant/Appellant) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon. Mrs Justice Patterson DBE,Mrs Justice Patterson |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] EWHC 3706 (QB) |
| Court | Queen's Bench Division |
| Date | 17 December 2015 |
| Docket Number | Appeal Case No: QB/2015/0247 |
[2015] EWHC 3706 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE SENIOR COURTS COSTS OFFICE
MASTER SIMONS
CASE NO C5/2012/1774
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Patterson DBE
Sitting with Assessor Master O'Hare
Appeal Case No: QB/2015/0247
David Holland QC and Christopher Jacobs (instructed by Howe & Co) for the Claimant/Appellant
Paul Joseph (instructed by Government Legal Department) for the Defendant/Respondent
Hearing date: 11 December 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an appeal against a decision of Master Simons, Costs Judge, on 6 May 2015. At a costs assessment on that day he determined that:
i) The claimant was entitled to retrospective recovery of base costs under Conditional Fee Agreements (CFAs) for both solicitors and counsel for work done before the CFAs were entered into;
ii) The claimant was entitled to recover base costs and a success fee of 67% for work done from the date of the CFAs;
iii) That the claimant was not allowed to recover any success fee for either solicitor or counsel for work done prior to the date of the CFAs.
This appeal is against (iii), the refusal in principle of a retrospective success fee for solicitors and counsel.
Factual Background
The appellant was one of multiple appellants involved in the case of R (Gurung & Others) v Secretary of State for the Home Department [2013] EWCA Civ 8. That appeal concerned the lawfulness of the refusal of entry clearance to dependant adult children of veterans of the Gurkha Brigade who had settled in the United Kingdom. The case was a test case heard in the Court of Appeal before the Master of the Rolls on 11 and 12 December 2012. The appellant was successful in his part of the appeal. The issue of the impact of the historic wrong on the balancing exercise to be performed under Article 8(2) European Convention on Human Rights was ordered to be remitted to the Upper Tribunal for reconsideration in accordance with the judgment of the Court of Appeal. By Order sealed on 14 February 2013 the Secretary of State was ordered to pay the appellant's costs. The parties failed to agree on the question of quantum and the matter was eventually listed before Master Simons for assessment on 6 and 7 May 2015.
At that hearing Mr S Chaffe and Mr C Jacobs appeared on behalf of Mr Ghising and Mr Joseph appeared on behalf of the defendant. The costs claimed were from July 2012. Having exercised their devolved powers under their legal aid contract on 9 July 2012, on 12 July 2012 Mr Ghising's solicitors made a full application to the Legal Services Commission for legal aid to cover Mr Ghising's appeal. At the time Mr Ghising had no income and was entirely reliant upon his father who was then living in Nepal. Because of relevant time limits the application for legal aid had to be submitted within five days of 9 July 2012 which the solicitors did, with an explanatory letter explaining the position with regard to Mr Ghising's father being his source of income. The application was refused on 2 August 2012 when the Legal Services Commission requested a resubmission with further documentation. That was done on 28 August 2012. After that the claimant's solicitors chased the application by letter and telephone and had conversations with the Head of the National Immigration Team. The claimant's solicitors believed that Mr Ghising qualified for legal aid.
By early October 2012 Mr Ghising's solicitors were instructing counsel to draw up submissions to conjoin his appeal with others already listed for 11 and 12 December 2012. Mr Jacobs prepared those submissions which were then emailed to the defendant's solicitors on 10 October 2012 for information. A formal application was made to the Court of Appeal shortly thereafter to link Mr Ghising's appeal with those already listed.
On 26 November 2012 Mr Ghising's solicitors were informed that their case had been linked with the others that were due to be heard in December 2012. By that time there had still been no decision from the Legal Services Commission.
A telephone call was then made by the claimant's solicitors to the Legal Services Commission still in the hope of obtaining legal aid. A letter was written to Mr Ghising on 28 November 2012 which broached for the first time the prospect of a CFA if legal aid was not forthcoming or if no decision had been made on the pending application.
On 6 December 2012 Mr Ghising entered into a CFA with his solicitors, Howe & Co, which covered, "Work relating to the application for the High Court, Court of Appeal and/or the Supreme Court ensuing proceedings including any appeal and counter-claim."
There was provision for a success fee in the sum equivalent to 100% of the normal rates for the time spent.
On 10 December 2012 a CFA was entered into between Howe & Co and Mr Jacobs. That included, in paragraph 2, that, "This agreement covers the costs of all work undertaken by Christopher Jacobs in respect of this matter, including all interlocutory matters from 28 August 2012."
The agreement was to be in place until the appeal to the Court of Appeal and any appeal by the respondent had been won, lost or concluded or the agreement was terminated.
There was a further CFA with an earlier counsel, Mr O'Connor, who had been involved prior to Mr Jacobs. That is not relevant to the matters before the court.
The respondent, in accordance with the Practice Direction, was notified of the executed CFAs on the same day.
The Ruling of Master Simons
The Master began by defining the issue which he had to decide, namely, can success fees be applied in this case retrospectively. He referred to the decision of Christopher Clarke J (as he then was) in Birmingham City Council v Forde [2009] EWHC 12 (QB). He concluded that there was no reason of public policy why retrospective success fees should not be allowed but it was a matter for discretion in each and every case.
In the bill of costs before the Master all the success fess are claimed from dates before the CFAs were entered into.
The Master set out that he heard from Mr Jacobs who was representing himself and the receiving party and also Mr Enright, from Howe & Co, and that he was informed about the application made in July 2012 for public funding and only when it was apparent in December 2012 that public funding would not be forthcoming that CFAs were entered into. He recorded the submission of Mr Jacobs that there had been no prejudice to the paying party, that CFAs were entered into in December 2012 and as this case was always going to be defended it made no difference to the risk whether the CFAs were entered into in July 2012 or December 2012, the risk was still the same. The paying party would not have acted any differently had they had knowledge of the CFA earlier than December 2012 and the case went to a fundamental aspect of Government policy.
The Master determined the issue as follows:
"10. The main difficulty that I find with regard to retrospective success fees is one of risk assessment. Since the inception of CFAs, it has been a fundamental aspect of the success fee that they are assessed at the time that the CFAs were entered into without the benefit of hindsight. Mr Jacobs submits that it was the same risk in July as it was in December, but I do not accept that submission. In July 2012, Howe & Co had represented to the Legal Aid Board that the chances of success were between 60 and 80 per cent and, on 6 December 2012, Mr Jacobs had assessed the chance of winning at 65 per cent. Mr Jacobs also submitted that, following the very late service by the Secretary of State of the skeleton argument on 7 or 8 December, the issues raised therein made the case even more risky. It therefore seems to me that there was a different risk in July than there was in December.
11. It is not for this court to make its own assessment of the risks in July and December, especially in a case such as this where it seems to me that the risks were so different and this supports the view that the proper time to assess the risk is at the time of the entering into the CFA when one cannot use the benefit of hindsight and my judgment is that, in this particular case, these success fees should not be retrospective. The fact that the paying party may not have been prejudiced is not, in my judgment, a fundamental factor that has to be taken into account, it is just but one factor, but Mr Joseph makes a point that, although it is quite possible that the late service of the Notice of Funding would not have made any difference, the paying party had no opportunity to consider that position."
Legal Background
In Birmingham City Council v Forde [2009] EWHC 12 (QB) Christopher Clarke J (as he then was) held:
"150. In respectful disagreement with Master Campbell and Master Hurst, I do not regard it as necessary to hold that a retrospective success fee is per se contrary to public policy. There is, in my view, insufficient warrant for effectively precluding solicitor and client from making such an agreement. In some, perhaps many, circumstances a retrospective success fee, or its amount, may be unreasonable, either as between the parties or as between solicitor and client. But this will not always be so. The...
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