No.23 of 2002
22 November 2002
Mrs Justice Cox (Sitting with Assessors)
The Claimant sought damages from the Defendant, a stage hypnotist, who, in the course of a public hypnosis, for which she volunteered, regressed her to the age of eight, thereby reviving memories of childhood abuse which she had suffered causing her considerable distress and putting her marriage under strain. The case was in fact one of a number of cases handled by the same firm of solicitors, and was intended to be the first to come to trial.
The Claimant was legally aided throughout (as the Defendant was from an early stage), and the case started in the County Court, and subsequently, because of its importance and because another case handled by the same firm had been determined adversely to the Claimant in the High Court by Mr Justice Toulson, this case was transferred to the High Court. After a five day trial Mr Justice Leveson gave judgment for the Claimant on much narrower grounds than were originally advanced by her, awarded her £6,500 agreed damages, and half her costs against the Defendant, and also directed a legal aid assessment of both her costs and his costs. The Defendant subsequently went bankrupt, and the assessment therefore was of the Claimant's costs under the Legal Aid Act and Regulations.
At the provisional assessment the Costs Judge disallowed all costs in connection with the considerable work put in by the Solicitors in response to two show cause letters from the Legal Aid Board/Legal Services Commission. In each case the certificate was discharged, but, following an appeal to the Area Committee, was restored.
The Solicitors expressed dissatisfaction with the provisional assessment, and between that and the full hearing commissioned an opinion from specialist counsel concerning the disallowances referred to above. Counsel advised in his written opinion that the Costs Judge was wrong, and his opinion was shown to the Costs Judge at the full hearing, but did not cause him to alter his original view. He did however give permission to appeal on that point. However he refused permission to appeal in respect of the Solicitors' request that the enhancement on basic legal aid rates of 50% for work done in the County Court should be increased to 100% for work done in the High Court. The final issue on the appeal was the question of whether or not the solicitors were entitled to the costs of counsel's opinion, irrespective of its effect on the detailed assessment.
The Costs Judge, in dealing with the disallowance of the show cause letters, etc, had in his subsequent written judgment relied on the wording of Regulation 111 of the Legal Aid General Regulations 1989; the failure to reproduce paragraph 3 of a Practice Direction of the Supreme Court Taxing Office of 1986, which suggested that these costs were recoverable; and the so called expressio unius principle.
On each of these points the Judge held that the Costs Judge had been wrong. So far as the 1986 Practice Direction was concerned she held that it accurately expressed the practice which was then in force, and therefore led to the reasonable expectation of the profession in such matters, and the mere fact that it had been repealed in 1992, and not re-enacted when standard and indemnity costs were introduced, did not invalidate that principle or understanding. In addition the Judge made the point that when the 1989 Regulations were drafted, the draftsman must be deemed to have knowledge of the pre-existing practice.
So far as Regulation 111 was concerned the Judge accepted that whilst, on the face of it, that Regulation did seem to preclude payment for the work in question, it was not an exhaustive Regulation that definitively decided what should and should not be paid for, and the Judge accepted that there was work, for instance, under Regulations 87(2), 88(2) and 90(1) which were not expressly covered by Regulation 111, but in respect of which the Legal Aid Board paid the solicitors for work done complying with those Regulations.
On the expressio unius point the Judge's attention was drawn to the criticism of the principle, expressed both at first instance and in the Court of Appeal in the case of Colquhon v Brookes in 1887 and 1888, as well as in the leading text book on these matters. She acceded to Counsel's submission that it should not be applied to the facts of this case, because to do so would work injustice. This was because it was in the interests of all concerned that solicitors should be encouraged to do all they could to preserve legal aid certificates, and in a case such as this in particular it was really not practicable to expect a lay person to be able to answer a show cause letter adequately so as to get the certificate not discharged, or, if it was discharged, restored on appeal.
With regard to counsel's opinion the Costs Judge had taken the view that if he had been persuaded by it he would have allowed the costs of it against the Fund, but as he was not persuaded by it he could not so allow it, but that nevertheless the solicitors could recover payment under the then Green Form Scheme. Again the Judge acceded to a detailed submission from counsel on the proper interpretation of the relevant Regulations that was not so, and that the Costs Judge's reliance on the case of R (Ecclestone) v Legal Aid Board (Unreported Appeal Decision No.11 of 2001) had been based on a misunderstanding. The test was whether the work was reasonably done and the expense reasonably incurred, and this could not depend on whether or not the opinion was successful in persuading the Costs Judge to change his provisional view.
Turning to enhancement, the Judge had the benefit of a full transcript of the trial Judge's judgment (which surprisingly counsel did not have). In that judgment the Judge expressed some concern that what was paraded as a test case, but in fact ultimately decided a very narrow issue of fact, had had legal aid funding on both sides, and expressed doubt as to whether or not the case should have been transferred to the High Court.
Founding herself on those dicta, and also on her view that there was no material misdirection by the Costs Judge of himself in not increasing the enhancement from 50% to 100% simply because the case was transferred to the High Court, the Judge refused permission to appeal on that point.
Costs in the sum of £4,750 for the appeal were granted, and the Judge gave permission for her detailed and lengthy judgment to be fully reported.