Storer v Wright
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BRIGHTMAN,SIR GEORGE BAKER |
| Judgment Date | 26 November 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J1126-6 |
| Docket Number | 1975 S. No. 9639 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 1980 |
[1980] EWCA Civ J1126-6
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
On Appeal from The High Court of Justice
Queen's Bench Division
(Mr. Justice Neill)
The Master of the Rolls
(Lord Denning)
Lord Justice Brightman and
Sir George Baker
MR. RICHARD FSRNYHOUG (instructed by Messrs. Kingsford Dornan) appeared on behalf of the Plaintiff (Appellant).
MR. DUNCAN MATHESON (instructed by the Law Society Solicitor) appeared on behalf of the Law Society (Respondents).
Peter Storer jumped off the pier at Swanage into the water. He hit some obstruction underneath. His leg was so badly injured that it had to be amputated. He said it was the fault of his instructors. He was on a diving course for one week run by the Divers Down Diving School. He said they ought to have been aware of the danger and warned him not to dive or jump into the water at that place or at that time. The accident happened on the 7th September, 1973. He was granted a civil aid certificate on the 22nd August, 1974-. A writ was issued on the 19th December, 1975. The action was tried by Mr. Justice Thompson for four days from the 8th to the 11th November, 1977. The judge dismissed the claim altogether He said it was the man's own fault. But he added that, if he had awarded damages, they would have been £40,000. The man was legally-aided. So the defendants got no costs out of him. They had to pay their own costs. That was hard on them - all the result of legal aid. The man himself did not have to pay his own costs. They were to be taxed and paid by the legal aid fund.
The man's solicitors - having lost the case - then brought in a bill of costs for payment by the legal aid fund. It included the fees payable to leading counsel and junior counsel and solicitors' fees. One item in the bill related to a view which was held at Swanage pier, together with a conference there. It was held in September, 1977, four years after the accident. The locus in quo was different in that the sea-bed may well have been at a different level and some civil engineering work (in operation at the date of the accident) had been completed. It was attended by counsel, and by solicitors, aswell as a diving expert and a surveyor. It must have cost a lot of money. On taxation, the taxing master disallowed counsel's fees for attending the conference and view, and also the solicitors' fees and expenses in connection with that view. He thought that a prudent solicitor with a private client would not have expended that big sum without his client's agreement in advance: and that it was doubtful if the area committee would have authorised it if they had been asked. There were other items too which the taxing master disallowed. Such as counsel's fees for a conference in April 1976, on the ground that the taxing master could find nothing to show that any conference ever took place, and part of leading counsel's brief fee (claimed at £550 but taxed at £350).
The solicitors were aggrieved - on their own account and for counsel - at the disallowing of those items. They carried in objections. The taxing master adhered to his opinion. He disallowed the items and gave his answers to the objections.
The solicitors then wanted to appeal to the judge. They asked the Law Society for authority to do so. The Law Society refused. So the solicitors went to the judge. They appealed to him, asking that the cost of the view and other items should be allowed. But the judge held that he had no jurisdiction to hear the appeal. He said that if the Law Society had authorised it, he would have had jurisdiction, but, as the Law Society had not authorised it, he had no jurisdiction.
(i) ORDINARY TAXATIONS
Taxation of costs" is a technical term. All that it means is the allowing, or disallowing, by an officer of the court, of the charges made by a solicitor for the work he has done. The High Court has inherent jurisdiction to order a taxation or to review it. It also has jurisdiction under theSolicitors Act 1974, sections 56 to 75
In all ordinary cases (other than legal aid taxation) the taxation is conducted on an adversarial basis. The bill is put forward by one party, and contested by another. There are two principal bases of taxation:
(a) Taxation on the "party and party" basis means that the taxing officer must consider the matter as if a losing party had been ordered to pay costs to a winning party. The taxing officer must allow only such costs such as were necessary or proper for the attainment of justice. It is of great importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs.
(b) Taxation on a "common fund" basis means that the taxing officer should be more generous. He should allow the solicitor a reasonable amount in respect of all costs reasonably incurred, see Order 62, rule 28(4): and only disallow such as are unreasonably high or unreasonably incurred.
(ii) LEGAL AID TAXATIONS
A legal aid taxation is different from all others: in that there is no one to oppose it. It is. not. adversarial, but inquisitorial. The taxing master is the inquisitor. The Legal Aid Act 1974 says in section 10 that "a solicitor who has acted for a person receiving legal aid shall be paid for so acting -out of the legal aid fund". But who is to challenge his bill? There is no one to contest the amount at all. If the client has lost the case - and has a nil contribution - he is not concerned in the least with the amount that the solicitor charges. If he has won the case - and awarded damages - he may be much concerned - because the solicitor gets a charge - for his costs - on the amount of damages recovered. The higherthe solicitors1 bill, the less his damages. But the client is never represented in the taxation or even told about it.
Schedule 2, paragraph 4, says that on a "legal aid taxation, costs shall be taxed according to the ordinary rules applicable on a taxation as between solicitor and client when the costs are to be paid out of a common fund". That only means on the same basis as would be applied if it were a taxation on a "common fund" basis - that is, a reasonable sum in respect of costs reasonably incurred. That paragraph does not bring in the rule of the Supreme Court about review by a judge contained in Order 62, rule 35.
Seeing that there is no one to oppose, it seems to me that, on a legal aid taxation, it is the duty of the taxing officer to bear in mind the public interest. He should himself disallow any item which is unreasonable in amount or which is unreasonably incurred. In short, whenever it is too high, he must tax it down. Otherwise, the legal aid system could be much abused by solicitors and counsel. Not that it was abused in this case. But there is the possibility of it unless closely watched. I cannot help remarking that, in a legally-aided case, counsel's fees are not marked on the brief. Nor is there any negotiation about them between counsel's clerk and the solicitor. The barrister's clerk claims the fee at what he thinks the case is worth. Solicitors' fees are often left to a subordinate in the office or even to an outside costs clerk who may claim to be paid commission on the amount of the bill as drawn by him - not as taxed by the taxing master. Unless the principals keep close watch, there is a temptation for the clerks to claim fees that are unreasonably high. I do not suggest that they do so. But there is a temptation for them to say: "It willbe knocked down. 10 per cent comes off anyway. It is a legally-aided case. The fund will pay". If the costs are passed without inquiry, the fund will suffer. The public will have to pay more than they should. Very often the legal aid certificate is expressed in such wide terms as to give the solicitors a "blanket" authority to conduct the proceedings, covering all items concerned in the course of it - without going to the area committee for specific authority: see, for instance, Hanlon v. The law Society (1980) 2 Weekly Law Reports at page 776. No doubt the certificate in the present case covered everything done in preparation for trial and of the trial itself. In any such case it is of the first importance that the taxing officer should go through all the items and see that there is no over-charging in any respect. Lawyers must not think that, on getting a certificate for legal aid, they have a blank cheque to draw upon the legal aid fund - as if it were a client with a bottomless purse - ready to pay for everything the lawyer can think of. The only safeguard against abuse is the vigilance of the taxing master. He has a difficult task. With no one to oppose it, he has to take much of the solicitor's word for granted - as to the work done. It would be easy for him to let everything through without question. But he must resist that easy course. He must be a watch-dog. He must bark when there is anything that arouses his suspicions.
Reverting now to the present case, the taxing officer disallowed various items, such as the cost of the view of the site and of the conference with counsel. The solicitors, on their own behalf and on behalf of counsel, were entitled to apply to the area committee for authority to carry inobjections, see the Legal Aid Regulations 1971, section 23(6) (b) The area committee gave authority. The solicitors carried in objections. The taxing master answered them. He gave detailed reasons for his disallowance of the various items.
The solicitors then, on their own behalf and on behalf of counsel, applied to the Law Society for authority to have the taxation reviewed by a judge, see the 1971 Regulations, section 23(7). It was considered by a very responsible...
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