QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF FAULKNER||Claimant|
|DIRECTOR OF LEGAL AID CASEWORK||Defendant|
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Mr Paul Nicholls QC and Mr Malcolm Bindling (instructed by Legal Aid Agency) appeared on behalf of the Defendant
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"3.3 However, in this case, the practical results of there being no order for costs in Mr Faulkner's favour would be the same, even if he were not legally aided. That is because the practical effect of such an order would be to effectively wipe out the award of damages in his favour:
3.3.1 In the event that Mr Faulkner had brought this litigation with the benefit of private funding, the effect of there being no order as to costs or an order for costs against him would be that the damages he was awarded would be reduced to zero as he would either have to bear his own legal costs or pay the costs of an agent of the state, in this case the Parole Board;
3.3.2 Given that Mr Faulkner brings this litigation with the benefit of public funding from the Legal Services Commission, the effect of there being no order as to costs or an order for costs against him would also be that the damages he was awarded would be reduced to zero. In the event that an order for costs were made against him, he would have to pay the costs of an agent of the state, in this case the Parole Board. In the event that no order as to costs were made, Mr Faulkner would still lose his damages through the likely payment of the 'statutory charge'.
3.4.4 Pursuant to Regulation 47 (3) of the [Community Legal Service (Financial) Regulations 2000, SI 2000 No 516], the Legal Services Commission may, if it considers it equitable to do so, waive some or all of the amount of the statutory charge. Regulation 47 (2) of the 2000 Regulations provides that the Legal Services Commission will only do so if (a) it funds legal representation in proceedings which it considers have a significant point of public interest and (b) the Commission considers it cost effective to fund those services for a specified claimant or claimants, but not for other claimants or potential claimants who might benefit from the litigation. The Legal Services Commission has not given any indication to Mr Faulkner that it will waive some or all of the amount of the statutory charge in this case."
"3.6 Given these factors, it would be unjust and unfair for there to be no order for costs in Mr Faulkner's favour. It would be plainly unfair for Mr Faulkner to obtain no real remedy from these proceedings due to the operation of the 'statutory charge' in circumstances in which (a) the court has recognised that he should receive £6,500 in damages as a result of breach of Article 5 (4) that led to a loss of conditional liberty and (b) a large number of other litigants will now be able to fully litigate their claims as a result of Mr Faulkner's conduct of this appeal."
"201 ..... the Court finds it reasonable that in this type of proceedings where the State, on account of the poor organisation of its judicial system, forces litigants – to some extent – to have recourse to a compensatory remedy, the rules regarding legal costs may be different and thus avoid placing an excessive burden on litigants where their action is justified. It might appear paradoxical that, by imposing various taxes – payable prior to the lodging of an application or after the decision – the State takes away with one hand what it has awarded with the other to repair a breach of the Convention. Nor should the costs be excessive and constitute an unreasonable restriction on the right to lodge such an application and thus an infringement of the right of access to a tribunal."
"4.9.3 If no order for costs is made in Mr Faulkner's favour, he will be in a position in which one agent of the state (the Legal Services Commission) takes away with one hand what another part of the state has awarded with the other to repair a breach of article 5 (4). This is because, as set out above, the application of the 'statutory charge' is likely to operate so as to remove any damages that Mr Faulkner obtains."
"13 In short, the Board was clearly the successful party. It succeeded on the question of principle raised by its own appeal, namely that an award of £10,000 was substantially out of line with Strasbourg authority, and it succeeded in achieving a substantial reduction in the sum of damages awarded. It succeeded entirely in resisting Mr Faulkner's cross-appeal on quantum, to the effect that £10,000 was too low, and also succeeded in resisting all of his alternative arguments, including some that were raised for the first time in this court. The Board is the successful party in this appeal, and, a fortiori, Mr Faulkner was not. Costs should follow the event."
That was the Board's primary position.
"25 If, contrary to this, the Court has some sympathy with Mr Faulkner's position then it must in any event balance any unfairness to him against the unfairness to the Board of requiring it to bear the costs of an unsuccessful litigant in a case in which the Board itself has been successful. The consequence to the Board would be considerably greater than £6,500. It would involve both the loss of the ability to recover its own costs against the LAA, and a requirement to pay Mr Faulkner's full costs (presumably at commercial rather than legal aid rates). As the court is well aware, the Board is a public body with limited resources, including a limited litigation budget. It is wrong in principle that it should be required, notwithstanding its success in this appeal, to bear the full costs of the appeal in order to provide a benefit to Mr Faulkner which he himself chose to risk losing.
26 In this regard, it may be noted that, if the Court accedes to Mr Faulkner's argument, the main beneficiary of that will be the LAA, which will thereby avoid a very substantial costs bill which it would otherwise be required to pay. The financial benefit to the LAA will likely be much greater, in absolute terms, than that to Mr Faulkner himself.
27 The LAA has a discretion as to whether to enforce the statutory charge against Mr Faulkner. If, contrary to the Board's own view, it is unfair to Mr Faulkner that he be deprived of his award by the statutory charge, this court is entitled to say so. Any comments it makes will not bind the LAA, but any decision that body subsequently makes on enforcement of the statutory charge is in principle amenable to judicial review. The cost to the LAA of waiving the statutory charge is in principle amenable to judicial review. The cost to the LAA of waiving the statutory charge would be £6,500 i.e. commensurate with the benefit which Mr Faulkner has been deprived of.
28 In short, even if there is force in Mr Faulkner's complaint that he is being unjustly deprived of the fruits of this litigation, the Board is not the proper target of that complaint, which should instead be directed against the LAA."
"31 ..... [Mr Faulkner] points to no case in which the operation of UK costs principles (including in claims under the HRA 1998) has been criticised by Strasbourg. The proposed analogy between what would have happened in a claim made in Strasbourg itself, and the situation which arises at the conclusion of an appeal to this court, is simply false. Mr Faulkner was awarded his costs by the Court of Appeal, both on the question of liability, and quantum. His problem arises because he has unsuccessfully sought to maintain that court's award, and indeed argued for a much higher award, on this appeal, a situation which has no analogue in proceedings in Strasbourg."
"Mr Faulkner [shall] pay the Parole Board's costs in the Supreme Court in an amount to be determined in accordance with either Section 11 of the Access to Justice Act 1999 (and regulations made under it) or Section 26 of the Legal Aid (Sentencing and Punishment of Offenders) Act 2012 and regulations made under it."
Nothing more was said; that is all.
"1 The statutory charge is designed to:
(a) put legally aided individuals as far as possible in the same position as successful non-legally aided individuals (who are responsible at the end of their cases to pay their own legal costs if their opponent in the litigation does not, or is unable, to pay them). The statutory charge converts legal aid from a grant into a loan. (See Davies v Eli Lilly & Co  3 All ER 94 at 97 to 98.
(b) ensure that legally aided individuals contribute towards the cost of funding their cases so far as they are able; and
(c) deter legally aided individuals from running up costs unreasonably by giving them a financial interest in how much money is being spent.
2 For about as long as there has been a solicitors' profession, solicitors have had a charge for any unpaid fees over any property they recover or preserve for their client. This is known as the 'solicitor's charge'. Section 73 of the Solicitors Act 1974 provides: 'Any court where a solicitor has been employed to prosecute or defend any suit, matter or proceeding may ..... declare the solicitor entitled to a charge on any property recovered or preserved through his instrumentality for his taxed costs ..... '
3 The law that creates the statutory charge is based on the solicitor's charge. The principle behind the solicitor's charge is that it is fair for solicitors to be able to take their costs out of any property their clients recover or preserve because of the services provided."
"(2) Paragraph (3) applies where:
(a) the Commission funds Legal Representation ..... in proceedings which it considers have a significant wider public interest; and
(b) the Commission considers it cost-effective to fund those services for a specified claimant or claimants, but not for other claimants or potential claimants who might benefit from the litigation.
(3) Where this paragraph applies, the Commission may, if it considers it equitable to do so, waive some or all of the amount of the statutory charge."