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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Campbell v Campbell [2018] EWCA Civ 80 (31 January 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/80.html Cite as: [2018] 1 WLR 2743, [2018] EWCA Civ 80, [2018] WLR(D) 65, [2018] WLR 2743, [2018] 1 Costs LR 51, [2018] 2 All ER 567 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr David Foxton QC (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE NEWEY
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RICHARD ANDREW CAMPBELL |
Appellant/ Claimant |
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- and - |
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ROBERT CAMPBELL |
Respondent/Defendant |
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Mr Andrew Twigger QC and Miss Narinder Jhittay (instructed by Taylor Wessing LLP) for the Respondent
Hearing date: 23 January 2018
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Crown Copyright ©
Lord Justice Newey:
"(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.
(2) The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.
(3) The litigant in person shall be allowed—
(a) costs for the same categories of—
(i) work; and
(ii) disbursements,
which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person's behalf;
(b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and
(c) the costs of obtaining expert assistance in assessing the costs claim.
(4) The amount of costs to be allowed to the litigant in person for any item of work claimed will be—
(a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or
(b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46."
(Emphasis added.)
"(a) barrister;
(b) solicitor;
(c) solicitor's employee;
(d) manager of a body recognised under section 9 of the Administration of Justice Act 1985; or
(e) person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act),
who has been instructed to act for a party in relation to proceedings".
"Sub-paragraph (b) relates to 'legal services', which are not defined by the rules. The notes in the White Book suggest that this sub-paragraph was intended to cover partial legal services; in other words some legal advice or assistance short of full representation. But I think the sub-paragraph is referring to services which are 'legal'; that is to say, services provided by or under the supervision of a lawyer. On the face of it, Mr Whiteland was not providing such services. Therefore the judge had no jurisdiction to award the respondent any part of Mr Whiteland's fees."
"The rule contemplates allowing as costs only those categories of disbursements which would normally have been made by a legal representative. If the expenditure is for work which a legal representative would normally have done himself, it is not a disbursement within the language of CPR r 48.6(3)(a)(ii)."
It followed that Mr Agassi was "not entitled to recover costs as a disbursement in respect of work done by Tenon which would normally have been done by a solicitor who had been instructed to conduct the appeal" (paragraph 75). Further, the Court took the view that "none of the items [of work at issue] are legal services which fall within CPR r 48.6(3)(b)" (paragraph 79), the Court considering that the reasoning in the United Building and Plumbing Contractors case was both binding on it and correct (paragraph 72).
"81 At first sight, it might seem regrettable that Mr Agassi should not be entitled to recover all of Tenon's fees, provided that they are reasonable and proportionate. But so to hold would undermine the delicate balance struck by CPR r 48.6(3) and conflict with the established understanding of what is allowable as a disbursement. Furthermore, … if Mr Agassi is entitled to recover Tenon's reasonable and proportionate fees under CPR r 48.6, so too would a litigant in person be able to recover the reasonable and proportionate fees of any person who provides general assistance in litigation. In view of the restricted ambit of section 20(1) of the 1974 Act [i.e. the Solicitors Act 1974] and of the definition of the 'right to conduct litigation' in the 1990 Act [i.e. the Courts and Legal Services Act 1990], there would be ample scope for any unqualified and unregulated person to provide general assistance in litigation, secure in the knowledge that the litigant in person, if successful, would recover the cost of that assistance as a disbursement. It may be said that there is nothing wrong with that, since the court can exercise control by limiting recovery to what is reasonable and proportionate. But, important though this mechanism of control undoubtedly is, it would at best be an imperfect tool for controlling the activities of unskilled and unregulated persons, who are immune from the specific sanctions inherent in the wasted costs jurisdiction of the court. In any event, it should not be overlooked that most cases settle out of court.
82 The obvious solution to the problems raised by this case is for an organisation such as the Chartered Institute of Taxation to become an 'authorised body' within the meaning of section 28(5) of the 1990 Act, and for those members who wish to conduct litigation to become authorised litigators and thereby 'legal representatives' within the meaning of CPR r 2.3(1). Section 28 would permit the institute to limit its application to a right to conduct a particular category of litigation, such as litigation falling within the scope of the permission granted by the Bar Council under the Licensed Access scheme. The reasonable and proportionate fees of any such litigator would be recoverable by a litigant in person as legal services under CPR r 48.6(3)(b)."
Lord Justice Longmore: