Sinclair-Jones v Kay

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE MAY,MR. JUSTICE WAITE
Judgment Date30 Mar 1988
Judgment citation (vLex)[1988] EWCA Civ J0330-3
Docket Number88/0299

[1988] EWCA Civ J0330-3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM A COUNTY COURT

Royal Courts of Justice,

Before:

Lord Justice May

and

Mr. Justice Waite

88/0299

Sinclair-Jones
and
Kay

MR. PURVIS, instructed by Messrs. E. Rex Makin & Company, Liverpool, for the Appellant (Plaintiff).

MISS H. STEVENS-HOARE, instructed by Messrs. Jackson Carter, Liverpool, for the Respondent (Defendant).

MR. K. READ, instructed by Messrs. Coynes & Company, Liverpool, for the solicitors in the negligence proceedings.

1

LORD JUSTICE MAY
2

As will be seen, Mr. Justice Waite has read my judgment. He cannot be here this morning, because he is on Circuit. He agrees with the judgment that I am about to hand down.

3

For the reasons set out in the judgment the appeal is allowed, with the consequential Orders set out at the end.

4

These are two appeals, the first with leave, against orders made by his Honour Judge Edward Jones in Liverpool County Court on 24th June and 21st July, 1987 respectively. On the former occasion the learned judge ordered that the plaintiff's application that the costs of part of what I shall call the substantive litigation should be paid by the defendant's solicitor personally should be refused. On the latter occasion the judge ordered that the plaintiff should pay the costs of and incidental to her application which had been refused on the former occasion. The plaintiff now appeals against each order, asking that they should be set aside, and seeking also an order that the defendant's solicitors should pay her costs of that part of the substantive litigation personally, and also the costs of and incidental to the original application for that order.

5

By Order 38 Rule 1(3), subject to exceptions immaterial for present purposes, the provisions of Part II of Order 62 of the Rules of the Supreme Court relating to entitlement to costs apply in relation to the costs of and incidental to any proceedings in a County Court as they apply in relation to the costs of any like proceedings to which that order applies.

6

The material provisions of order 62 are contained in Rule 11 as follows:

"11–(1) Subject to the following provisions of this rule, where it appears to the Court that costs have been incurred unreasonably or improperly in any proceedings or have been wasted by failure to conduct proceedings with reasonable competence and expedition, the Court may—

  • (a) order—

    • (i) the solicitor whom it considers to be responsible (whether personally or through a servant or agent) to repay to his client costs which the client has been ordered to pay to any other party to the proceedings; or

    • (ii) the solicitor personally to indemnify such other parties against costs payable by them; and

    • (iii)the costs as between the solicitor and his client to be disallowed; or

  • (b) direct a taxing officer to inquire into the matter and report to the Court, and upon receiving such a report the Court may make such order under sub-paragraph (a) as it thinks fit.

(3) Instead of proceeding under paragraph (1) of this rule the Court may refer the matter to a taxing officer, in which case the taxing officer shall deal with the matter under paragraphs (2) and (3) of rule 28.

(4) Subject to paragraph (5), before an order may be made under paragraph (1)(a) of this rule the Court shall give the solicitor a reasonable opportunity to appear and show cause why an order should not be made."

7

Order 62 Rule 28(2) in its turn is in these terms:

"(2) Where, whether or not on a reference by the Court under rule 11(3), it appears to the taxing officer that—

  • (a) any costs have been incurred unreasonably or improperly in the taxation proceedings or in the proceedings which gave rise to the taxation proceedings, or

  • (b) any costs have been wasted by failure to conduct those proceedings with reasonable competence and expedition, or

  • (c) there has been a failure to procure taxation, he may, subject to paragraph (3) of this rule, exercise the powers conferred on the Court by rule 11(1)(a)."

8

The substantive litigation in this appeal related to residential premises known as 18 Selsdon Road, Crosby, Liverpool, of which at all immaterial times the plaintiff was the freehold owner. By an agreement in writing of 2nd April, 1986 she let those premises to the defendant for six months from 26th March, 1986 at a monthly rent of £281.67. However, a fair rent for the premises of £127.50 per month was registered on 30th June, 1986. Nevertheless on the determination of this short term the defendant left owing £400.98 arrears of rent and also, according to the plaintiff, having committed a certain amount of waste, or alternatively breaches of the relevant covenants in the tenancy agreement. The defendant disappeared, leaving no address, although the plaintiff and her solicitors knew that the defendant did have solicitors acting for her. Despite this and a number of letters from the plaintiff's solicitors it was not until 2nd December, 1986 that the defendant's solicitors wrote to the plaintiff's solicitors, saying that they had instructions to accept service of proceedings.

9

Consequently on 27th January, 1987 the plaintiff's solcitors issued proceedings in Liverpool County Court against the defendant for the arrears of rent of £400.98 and damages for breach of the tenancy agreement. These proceedings were duly served on the defendant's solcitors by post on 29th January, 1987, together with a notice that the plaintiff was legally aided. However, no defence was served on the defendant's behalf, and on 3rd March, 1987 the plaintiff's solicitors entered judgment in default against the defendant for the rent arrears and also for damages to be assessed. An appointment for the hearing for the assessment of those damages was fixed for 1st May, 1987.

10

On 29th April, 1987, that is, some eight weeks later, the defendant's solicitors gave notice to the plaintiff's solicitors that they would be seeking to set aside the judgment both for rent and damages. This application was in fact made to Mr. Recorder Burke Q.C. at the appointment already fixed for 1st May. Further, it was only on 29th April that the plaintiff's solicitors learned that the defendant had been granted a legal aid certificate to enable her to defend the proceedings. This had been issued on 10th March, 1987 and the defendant's solicitors notified on 13th March, 1987, but no notice had been given to the plaintiff's solicitors until the end of April.

11

When the matter came before the learned Recorder on 1st May it was clear that the defendant had no defence to the claim for arrears of rent, although she continued to maintain that she had a defence to the claim for damages. In the result, the learned Recorder entered judgment for the plaintiff for the arrears of rent. He set aside the judgment for damages, giving the defendant leave to defend and counter-claim.

12

In these circumstances the plaintiff would in the normal way have been entitled to costs on the judgment for the rent arrears and also for those costs thrown away as a result of the application to set aside the judgment. However, the defendant resisted any such order on the basis that she was legally aided. Situations such as this not uncommonly arise in connection with legally-aided litigation. On this occasion it was disastrous for the plaintiff because, although she had a judgment for the rent arrears, she had no order for costs. She herself was legally aided and the Law Society in consequence had a statutory charge in respect of her costs on the monies to be recovered from the defendant. In these circumstances the plaintiff made an application at the hearing before the learned Recorder that those costs which could not be recovered from the legally-aided defendant should be paid by the defendant's solicitor personally. The learned Recorder adjourned that application to the judge for hearing on 9th June, 1987 and directed that the defendant's solicitor should attend to show cause why an order for...

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