England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice The Strand London
		14 December 1998

MR EDIS: May it please you, my Lord, in the matter of Hall v Simons, I appear for Mr Simons today, and I would ask for my costs of the appeal before your Lordships, together with a legal aid taxation of those costs, and I would also ask for costs of the preliminary issue below

THE LORD CHIEF JUSTICE: It may be convenient to take these one by one Who is your opponent?

LORD MESTON: My Lord, I stand in for Mr Jackson on all appeals on this side, with Miss Mirchandani standing in as junior counsel in respect of all matters My Lord, perhaps it will shorten matters if I say that it is not my intention to resist applications for costs, subject to the normal rule applying: that those costs should not be taxed or paid in any single case before final determination of litigation, either by trial of the substantive issue or by further appeal

THE LORD CHIEF JUSTICE: I am not sure which cases involve legal aid taxation It evidently does in Hall v Simons

LORD MESTON: My Lord, yes I think they all do, save in the case of Mr Barratt who has been legally aided in respect of part of the proceedings

THE LORD CHIEF JUSTICE: There still needs to be a legal aid taxation, and Mr Cockbone has been acting in person

LORD MESTON: Yes

THE LORD CHIEF JUSTICE: Very well I understand that there is no resistance to orders for costs in favour of the successful individuals in each appeal There will be a legal aid taxation so far as relevant in the case of Hall v Simons, Barratt v Woolf Seddon and Harris v Scholfield Is there any resistance to Lord Meston's application that the costs should not be the subject of -- did you say of taxation or payment?

LORD MESTON: My Lord, what I am submitting is that the normal rule, which is Order 62, rule 8, should apply, that the costs of any proceedings shall not be taxed until the proceedings of the cause or matter in which the proceedings arise In each of these cases, even if the matter were not to go further on appeal, in each of these cases there will of course be a trial now as a result of your Lordships' decision and the question then of set-off for costs and so forth may arise That is the thinking behind the normal rule which I have just cited

THE LORD CHIEF JUSTICE: Yes Is there any resistance to that application on Lord Meston's part?

MR EDIS: My Lord, on behalf of Mr Simons there is no resistance to that One would normally have a taxation of a discrete issue as soon as it became dispensed with, and I know not how the Legal Aid Board deals with taxation and delay in asking for taxation, but so far as Mr Simons' own interests are concerned, he does not resist that

THE LORD CHIEF JUSTICE: What about the other individuals?

MR POINTER: My Lord, so far as Mr Barratt is concerned, as to the order itself, could I just mention that the order should be for costs both of the appeal and below?

THE LORD CHIEF JUSTICE: Yes

MR POINTER: There seems, may I suggest, no particular reason why there should not be a taxation of costs involved in the strike-out application and the appeal, even if questions of payment be deferred until final determination of the case The object, as I understand it, of my learned friend in raising this point is so that if there were to be a taxation and the costs were to be paid, then they would have to go through a process of recovery if they were going to succeed in the final proceedings

THE LORD CHIEF JUSTICE: Are you talking about legal aid taxation or taxation otherwise?

MR POINTER: It becomes slightly complicated I am really talking about inter partes taxation, my Lord Mine being a recent certificate, it would be taxed on a private basis There is no reason why the taxation should not take place

THE LORD CHIEF JUSTICE: Who are you representing?

MR POINTER: Mr Barratt

THE LORD CHIEF JUSTICE: Only Mr Barratt?

MR POINTER: Only Mr Barratt

THE LORD CHIEF JUSTICE: Mr Cockbone, you would probably abide by the order made in the other cases, would you?

MR COCKBONE: Well, I have brought a little speech My Lord, I prefer the taxation for this case

THE LORD CHIEF JUSTICE: To take place now even if there is no payment?

MR COCKBONE: Yes

THE LORD CHIEF JUSTICE: Well, that is a very clear submission Mr Duckworth, what do you say?

MR DUCKWORTH: My Lord, I have no observations The order for taxation, which I take to have been made today, accrues for the benefit of those who represented Mrs Harris in terms of payments on account My Lord, I cannot think of any other dimension where she needs her costs to be paid now -- or rather that the Legal Aid Board need their costs to be paid now rather than at the end of the case THE LORD CHIEF JUSTICE: Lord Meston, the point appears to be: is there a virtue in having the taxation in any event, even if there is no payment?

LORD MESTON: My Lord, I think the position is that there is no great virtue in having a taxation now if there is going to be no payment now

THE LORD CHIEF JUSTICE: I think there has to be a legal aid taxation now

LORD MESTON: I am so sorry, there has to be a legal aid taxation

THE LORD CHIEF JUSTICE: And my Lord makes the potent point to me: if there is going to be a legal aid taxation, why not let the same taxing master do the whole thing?

LORD MESTON: My Lord, I see the force of that in the case of the legally aided parties My Lord, I think therefore my application is limited to saying that there should be no payment pending determination

THE LORD CHIEF JUSTICE: I think, if three of the cases are being taxed for legal aid purposes, that it would be foolish and uneconomical for Mr Cockbone's costs not to be taxed at the same time because they are so intimately interlinked, at any rate at this moment

LORD MESTON: My Lord, I think the concern is always that if at the end of the proceedings there are set-offs to be considered in terms of costs --

THE LORD CHIEF JUSTICE: I do not think anybody is resisting your submission that no money should actually cross the divide at this point

LORD MESTON: Then, my Lord, in that case I do not pursue the matter further I would invite your Lordship so to direct

THE LORD CHIEF JUSTICE: Very well In all the cases we shall order that there be a taxation and legal aid taxation, as the case may be, but that there be no payment under any such order pending the final outcome of the proceedings I think, Lord Meston, that it would be very helpful if you and your opponents could formalise the order in all four cases to make sure that it covers everything It is going to be quite a complicated order Would you, with the assistance of your learned junior, Mr Pointer, and those sitting behind you, put your heads together at the end of this and let the associate have a draft?

LORD MESTON: Of course, my Lord

THE LORD CHIEF JUSTICE: Thank you

LORD MESTON: Can I finally, in respect of all of these matters, invite the court to consider leave to appeal to the House of Lords?

THE LORD CHIEF JUSTICE: Yes

LORD MESTON: My Lord, I think it goes without saying that the outcome of these appeals has been of considerable importance to practitioners and their insurers and, indeed, looking at it from the other point of view, of importance to the consumers of legal services

THE LORD CHIEF JUSTICE: Yes

LORD MESTON: The result of the decision of this court is that inevitably it is going to be less easy to strike out an action without incurring the costs of preparing for trial

THE LORD CHIEF JUSTICE: Lord Meston, I think I can perhaps assist you to this extent My Lords and I have had some discussion in anticipation that you would make this applicationion -- it does not come as a total surprise I can tell you, subject to anything that anybody may say in resistance, that this does seem to us a matter that deserves the consideration of the House of Lords What we are concerned about is how this is best stage-managed

LORD MESTON: My Lord, yes

THE LORD CHIEF JUSTICE: And two possible ways of handling that problem occur to us One is to refuse leave and let you apply, and on your petition their Lordships can then indicate how they think the matter can best be stage-managed in order to avoid unnecessary proliferation of counsel and unnecessary expense The other way of doing it would be -- again subject to what may be said in resistance to your application -- to grant leave, but with an indication that it is desirable that you should seek their Lordships' directions as to how they would like the appeals to be handled That, I think, is novel I am not alive to such an application having been dealt with before, but their Lordships are hearing novel applications at the moment

LORD MESTON: My Lord, I certainly would invite you to take the latter course and to grant leave, subject to that indication We are conscious that there are other appeals in the pipeline and it may be with this as the lead appeal to the House of Lords, subject to whatever trimmings the House of Lords may apply, that once the matters all get to their Lordships' House the necessary directions can then be given, or the internal decisions made on this side as to which in fact should proceed

THE LORD CHIEF JUSTICE: Shall we hear what your opponents say, first of all?

MR EDIS: My Lord, I am instructed to oppose leave to appeal, but I do not say any more on that than to make that point I do say this, however, my Lord Any further appeal would be principally for the benefit of the legal profession There is nothing wrong with that, but you are well aware and have in mind the size of the claim against Mr Simons and the size of the counterclaim he makes Both are under £10,000 There is a very real risk that, if it goes to their Lordships' House and your judgment is overturned and there is an adverse costs order there, that that will frustrate Mr Simons' whole point in going to court in the first place I ask your Lordships to give consideration as to whether you might invite the Solicitors Indemnity Fund to give an undertaking not to disturb the order for costs you have just made, whatever the result in the House of Lords, because if there is an adverse costs order there that would subsume the entirety of the whole point of the litigation between Mr Simons and the firm

MR POINTER: Mr Barratt would like to see the end of this litigation and he is unenthusiastic about it proceeding further to the House of Lords This has all the hallmarks of a lawyers' jamboree His case is again a modest case and I respectfully draw your Lordships' attention to the fact that the allegations made by Mr Barratt in his case, upon which your Lordships observed in the course of judgment, are -- some of them -- very far removed from conventional advocates' immunity His always was a powerful case against the solicitors if his allegations were made out He should therefore not be embraced in any review of this case in the House of Lords

THE LORD CHIEF JUSTICE: Mr Cockbone, you go along with what other people say?

MR COCKBONE: Yes, my Lord I have brought a little speech, my Lord

THE LORD CHIEF JUSTICE: No, we do not want your speech, Mr Cockbone I am sure it is a good speech, thank you, but we still do not want it We have in mind that you oppose leave to appeal

MR COCKBONE: Yes

THE LORD CHIEF JUSTICE: Yes

MR COCKBONE: I apply for full costs, my Lord

THE LORD CHIEF JUSTICE: We are treating you as opposing leave to appeal and as saying: if there is to be an appeal you should be protected in relation to costs

MR COCKBONE: Yes

THE LORD CHIEF JUSTICE: That is what you say?

MR COCKBONE: Yes

THE LORD CHIEF JUSTICE: Thank you That is very well put

MR DUCKWORTH: My Lord, on behalf of Mrs Harris I am formally instructed to oppose the grant of leave to appeal principally on the ground that time has elapsed since the case in question, and failing memories

THE LORD CHIEF JUSTICE: But you make the same application in relation to the costs invitation?

MR DUCKWORTH: My Lord, yes

THE LORD CHIEF JUSTICE: Lord Meston, what do you way about that?

LORD MESTON: My Lord, so far as an undertaking by the Solicitors Indemnity Fund are concerned, I simply do not have instructions I cannot take that any further at this stage My Lord, as to the point as to the size of the sums involved, of course very often -- quite often -- the importance of the point at issue is not reflected in the size of the amount in issue But certainly we reject the proposition that this is some sort of lawyers' jamboree It is a point of considerable importance

THE LORD CHIEF JUSTICE: I think that was possibly a needlessly pejorative term What Mr Pointer really meant was that the significance of this issue to those who insure lawyers, and to lawyers themselves, vastly outweighs the individual interests of individual litigants

LORD MESTON: My Lord, what I sought to say earlier was that there is an importance to the consumer as well I hope I was not putting it simply from the narrow perspective of the defendants The plaintiffs' interests as well require further clarification, and we support the application for leave to appeal to the House of Lords My Lord, I could develop that argument if your Lordship wishes me to But there is a difficulty as to the status of the collateral attack in respect of court room doors, which your Lordships have dealt with in your judgment The judges in future are going to have to be faced with how much of Kelley v Corston survives That, of course, is another decision of this court -- a three judge court -- who reserved judgment in which, on the face of it, clear propositions were expressed on the status of approved orders particularly in ancillary applications My Lord, I do say that irrespective of the individual interests, the interests of the consumers generally would argue that this matter should go further, not just from the narrow perspective of the legal profession and all their insurers

THE LORD CHIEF JUSTICE: Thank you As our judgment makes plain, and as we fully and unreservedly recognise, these appeals raise issues of very considerable importance and significance both to practising lawyers and their insurers, and also, perhaps even more importantly, to users of legal services The issues that have been raised are in our judgment eminently fit for consideration by their Lordships' House

In the ordinary way that would lead us to grant leave to appeal, as we have been asked We however decline to do that for several reasons First, we are conscious that the costs involved in these appeals are out of all proportion to the sums about which the individual litigants are litigating Second, we are very conscious that there are other cases -- some of them originally in our list were taken out at the last minute -- which may well prove to be more suitable vehicles for an appeal to their Lordships than any of the four appeals in which we have given our decision Third, we think it important that the individual litigants should enjoy some measure of protection against the costs of further proceeding

So far as the legally-aided litigants are concerned, it may very well be that they are at no risk since no order would be made against them On the other hand, were we to grant leave, we would unquestionably be involving the Legal Aid Board in expenditure of further funds and, if it were ultimately unsuccessful, it would be at risk for what could prove a very substantial order for costs

For all those reasons we think that on balance it is preferable that petitions for leave should be made to their Lordships themselves As we have already indicated, we fully recognise the importance of the issues, but we think that if leave is sought from their Lordships, that will provide the best machinery for their Lordships themselves to consider and rule on the further conduct of either these appeals or whichever other appeal is chosen as the most suitable vehicle for further consideration of this matter I hope that it will not be in any way thought that we are failing to recognise the significance of these issues -- far from it It is simply a question of how the matter is best progressed from here and that is an issue on which we think their Lordships must be the best judges

LORD MESTON: My Lord, whilst understanding the way in which your Lordship has put the matter in refusing leave, I think it would be particularly helpful to those behind me who have to make the decision in this matter for the channels of communication to be open with the court so that we may know quite clearly which other appeals are pending and when they are likely to be determined by this court so that decisions can be made whether in fact one of these appeals -- or more of these appeals -- can be taken further and the terms in which the petition ought to be drafted

THE LORD CHIEF JUSTICE: The Civil Appeals Office will be completely forthcoming as to what other appeals there are We happen to know that Griffin v Kingsmill was in the list as one of the appeals to be heard in this clutch of appeals until, I think, a week before I forget -- I think I was told, but I forget -- why it was taken out But we understand there are other appeals in the pipeline For example, I think there is an appeal pending against the Vice-Chancellor's decision

LORD MESTON: Yes

LORD JUSTICE MORRITT: I think, Lord Meston, it might help when you are contacting the Civil Appeal Office if you invite them to pass your request to the relevant supervising Lords Justices dealing with the County Court, Queen's Bench and Chancery lists It may be that the point is arising in other lists as well I do not know It could be that it is best if it goes to all supervising Lords Justices That, I think, is the best way to make sure that you have covered the field in so far as it is capable of being covered

LORD MESTON: My Lord, that is all I was concerned about

THE LORD CHIEF JUSTICE: Thank you very much indeed We are grateful for your help Are there any other points?

LORD MESTON: My Lord, no

THE LORD CHIEF JUSTICE: Thank you very much We repeat our thanks to all counsel involved in these appeals

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