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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Edwin Coe (A Firm) & Anor, R (On the Application of) v Area Director Of Legal Aid Board [2000] EWCA Civ 157 (17 May 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/157.html
Cite as: [2000] EWCA Civ 157
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Case No: QBCOF 1999/0907/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE SULLIVAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 17 May 2000
LORD JUSTICE SIMON BROWN
LORD JUSTICE JUDGE
and
LORD JUSTICE TUCKEY
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REGINA |
| |
- and - |
||
THE
AREA DIRECTOR OF THE LEGAL AID BOARD |
Appellant |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr J Harvie QC & Mr A Maclean (instructed by Policy & Legal Dept. Legal Aid Board of London WC1X 8AA) for the Appellant
Mr A Hillier (instructed by Edwin Coe of 2 Stone Buildings, Lincolns Inn, London WC2, solicitors) for the Respondents
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
This appeal raises a point of some importance as to the circumstances in which a legal aid certificate can be amended for mistake. Regulation 51 of the Civil Legal Aid (General) Regulations 1989 (the Regulations) provides that:
"The Area Director may amend a certificate where in his opinion -
(a) there is some mistake in the certificate; ..."
What is meant by mistake in this context? What is the effect of this court's long-standing decision in R & T Thew Limited v Reeves [1982] QB 172? These are the critical questions before us.
The point is important both generally and to the first respondents, a firm of solicitors with some £70,000 worth of costs (quite apart from the costs of these judicial review proceedings) riding upon it.
The facts are set out in considerable detail in the judgment below. They can, I think, sufficiently be summarised as follows. The second respondent (Mr Moukarzel) was one of many defendants in very large-scale proceedings for conspiracy to defraud brought by a Spanish company and its subsidiary. The case was known as the Gruppo Torras fraud case and was only finally decided by Mance J last summer. Mr Moukarzel was an investment analyst employed by the second plaintiff and was thereafter a director for some time. The sums involved in the fraud were massive, in excess of $450 million, and the proceedings were very substantial and very complex. At the end of the day the claim against Mr Moukarzel was dismissed but the judge ordered that he was to receive only half of his costs from the plaintiffs. This appeal is concerned with part of the other half.
Mr Moukarzel was first granted legal aid on 22 February 1994. The material parts of the certificate read:
"1. DESCRIPTION OF LEGAL AID
To defend/continue to defend proceedings No: 1993 Folio No. 624 between the assisted person and Grupo Torras SA and/or Torras Hostench London Limited
2. CONDITIONS AND LIMITATIONS (if any)
Limited to representation on an action to strike out. It is a condition that the solicitor shall report to the area office on form CLA30 if profit costs, disbursements and counsel's fees exceed £7,500. If an extension is not obtained, subsequent profit costs may be deferred."
Following two amendments made to authorise changes of solicitor (see regulation 51(f) of the Regulations) which put the first respondents (Edwin Coe) in place, Edwin Coe applied on 10 November 1994 on form CLA30 for the certificate to be amended. They ticked the box inviting an amendment for "Removal of Limitation/Condition", invited an increased costs figure of £20,000, and gave as the "Reason for request":
"Proposed application to strike out is not being made. Leading counsel ... confirms defence must now be prepared, and probably application for further and better particulars. Counsel advises that the assisted person has a good defence to the claim."
The form further made clear that the suggested new figure of £20,000 costs was "to defence."
On 10 November 1994 the Legal Aid Area office certified that the certificate had been "amended as follows":
"by removal of the existing limitation and substituting therefor: Limited to obtaining further evidence and thereafter Counsel's Opinion as to merits, to include the settling (but not the issue or service) of proceedings or a defence (and counterclaim), if Counsel so advises.
By deleting the amount contained in the condition in the certificate and by substituting the amount of £20,000."
Thereafter Edwin Coe submitted two further applications in form CLA30 to amend the certificate, respectively on 13 June 1995 and, with fuller explanation, on 19 January 1996, each seeking increases to £40,000. Neither, however, was granted and I can go straight to a further such application, made on 5 June 1996 to increase the costs allowance to £80,000. The reason for that request was stated to be:
"Need to deal with summons for directions and discovery. See attached for estimate of costs incurred to date and estimate of costs up to and including discovery."
The attached document (which in turn attached Mr Moukarzel's Points of Defence and a three page letter from the plaintiffs' solicitors dated 28 February 1996 enclosing a draft Summons for Directions) contained an estimate of Edwin Coe's costs to February 1996 of some £30,900 and a further estimate of their costs up to and including discovery (to include counsel's fee for attending a full day hearing of the Summons for Directions listed for 22 July 1996) of a further £49,100 odd. It also stated that further and better particulars of the further and better particulars of the Points of Defence had already been served on behalf of Mr Moukarzel.
That application was initially refused by the Area Manager on 12 June 1996, essentially on the ground that insufficient information had been provided. The respondents gave notice of appeal stating essentially that it was impossible and unrealistic to attempt at that stage an estimate of the total costs of the case or to provide a breakdown. It said that a guesstimate (of £80,000) had been provided of the costs up to and including discovery and that the best guess was that the costs of Mr Moukarzel's defence would be not less than £100,000. The point was made that the issues were vastly complex.
The matter was then reviewed internally by the Legal Aid Board. There is a memorandum from Miss Saunders, a case worker, to Ms Turner, an experienced solicitor, stating inter alia:
"The claim is worth $450 million. It appears that the costs to discovery stage are about £100,000. ...
The matter has been referred from the Amendments Team on an appeal on a refusal to increase the costs condition.
Could you please review this matter. Obviously a decision needs to be made on the costs condition increase but it may be appropriate to consider whether or not this is something that we feel should continue."
Ms Turner's manuscript response was:
"I don't see how we can withdraw legal aid. The `privately paying person' test can't really be applied in this situation."
So it was that on 10 July 1996 the certificate came to be certified as amended:
"By deleting the amount contained in the condition in the certificate and by substituting the amount of £100,000."
In 1997 there was a further application to increase the costs condition to £515,000. The reason was the need to prepare for trial. This was listed to commence on 1 October 1998 and the estimate was between twenty-four to thirty-six weeks. Because it was then recognised as a high cost claim, the application was passed to Mr Baker, a solicitor in the London area office, for consideration. He pointed out that the certificate continued to be subject to the limitation:
"To obtaining further evidence and thereafter Counsel's Opinion as to merits, to include the settling (but not the issue or service) of proceedings or a defence (and counterclaim), if counsel so advises."
He suggested, therefore, that any work undertaken in excess of that limitation - i.e. after the service of the Points of Defence - was not legally aided and would not be paid for by the Legal Aid Board. Correspondence ensued. Edwin Coe said that they had understood the limitation to mean that the certificate allowed steps to be taken towards settlement of the proceedings or, subject to Counsel's Opinion on the merits, the service of a defence. That was, of course, an impossible construction and it has long since been abandoned.
In the event, Edwin Coe on 1 April 1998 made a fresh application to increase the costs condition to £515,000, this time duly ticking the relevant box on form CLA30 to invite also the removal of the existing limitation. Mr Baker responded to that fresh application by letter confirming that:
"as of 14 April 1998 I have granted an amendment removing the current limitation and replacing it with `limited to all steps up to and including pre-trial review and thereafter a Solicitors' report or Counsel's Opinion'."
Later amendments were duly sought and granted and no further problems arose. The one-half of Mr Moukarzel's costs awarded against the plaintiffs amounted to £390,000 odd. The bulk of the other half has been paid by the Legal Aid Board. Unpaid, however, is some £80,000 representing the costs incurred by the respondents between February 1995 when the Points of Defence were served and 14 April 1998 when the certificate was finally amended to remove the limitation which had precluded service of the defence.
Edwin Coe acknowledge, as they must, that the costs (some £10,000 worth) incurred between the service of the Points of Defence in February 1995 and 10 July 1996 when, following upon the June 1996 application, the Board increased the costs condition to £100,000 are not recoverable under the certificate. They claim, however, the balance of £70,000 and it is that sum which is at stake in these proceedings. Edwin Coe's entitlement to this depends upon whether or not the certificate as amended in July 1996 could and should thereafter have been amended under regulation 51(a) to remove the pre-existing limitation and to allow instead for all steps up to and including the Summons for Directions and Discovery.
That is the issue now before us. The respondents argue, and by his order of 21 July 1999 Sullivan J ruled, that there was a mistake in the certificate which the Area Director could have amended. The Legal Aid Board contend the contrary and now appeal.
The Legal Aid Board is a public body working within a statutory framework provided by the Legal Aid Act 1988, regulations made thereunder (including the Regulations), and Notes for Guidance issued by the Legal Aid Board. The Notes for Guidance emphasise "that the legal aid certificate, and any amendments, are conclusive. On taxation/assessment ... it is the only authority for the legal aid administration to pay the solicitor and counsel and the solicitor/counsel should check the extent of the legal aid cover" (paragraph 9-01); that "payment will not be made out of the legal aid fund for any work done in advance of the date of the certificate ... " (paragraph 9-03); and, by paragraph 9-04:
"It is up to the solicitor and counsel to make sure that the certificate covers all the work that needs to be done for the assisted person. All certificates contain a limitation and it is particularly important to check the effect this has on scope. Generally if the wording is incorrect or not in accordance with the needs of the assisted person, it will affect:
(a) solicitor and counsel, who will not get paid for work outside scope,
(b) the assisted person who might not be covered by legal aid for all that is necessary and who may become vulnerable to the personal claim for costs by the other party;
(c) a successful opposing party who might not be able to claim costs against the legal aid fund."
Mr Harvie QC for the Board not surprisingly places great emphasis on these Notes and urges that there was no mistake here in the certificate; rather there was a clear failure by Edwin Coe to ensure that the scope of the certificate was not inappropriately limited and that legal aid cover properly extended to the steps which they were taking following service of the defence. The only mistake was in Edwin Coe's understanding of the effect of the limitation clause.
Mr Harvie also relies heavily upon the judgments of the majority of the court (Dunn and O'Connor LJJ) in Thew v Reeves, a case in which Lord Denning MR dissented. So central, indeed, is this authority to the point at issue that I propose to deal with it in detail at this stage.
R & T Thew Limited (the Company) sued Reeves for certain sums due to them. Reeves applied for legal aid. After considering a "synopsis" of the case which made it clear that Reeves was admitting his indebtedness to the Company but seeking to counterclaim on the ground of fraudulent or negligent misrepresentation, the legal aid committee in November 1977 issued Reeves with a certificate "to defend [the] proceedings". Not until 7 March 1980, a few days before trial, was the certificate amended to include the words "and counterclaim in" the proceedings. Following Reeves' effective capitulation at trial, the company sought an order for costs out of the legal aid fund. Pursuant to s.13(3)(a) of the Legal Aid Act 1974, the power to make such an order arose only in respect of proceedings instituted by the assisted person. A counterclaim constitutes the institution of proceedings but, of course, the certificate issued to Reeves did not extend to a counterclaim until just before trial. The trial judge concluded that there was a mistake in the certificate and that he could correct the matter and so put the plaintiffs in a position to recover their costs from the Law Society. The majority of the Court of Appeal held the contrary. Dunn LJ said this:
"The mistake referred to in regulation 9(1)(a) [the then equivalent of regulation 51(a)] is the mistake of the area committee in issuing the certificate, and not the mistake of the applicant. It is the duty of the applicant to apply for the appropriate certificate; applications are invariably made by solicitors, and it is their duty to apply for the appropriate certificates; it is not the duty of the Legal Aid Committee to go behind the application and decide what proceedings the certificate should cover. ... (p.200)
Whatever the financial hardship suffered by the plaintiffs in this case (and I recognise that it is considerable) one cannot just brush all these regulations aside, and say that there was in fact authority to counterclaim ... , that that authority had been given before the certificate was issued, and that the judge had found as a fact that the area committee intended that the defendant should be granted legal aid to cover those matters." (p.201)
O'Connor LJ agreed:
"Mr Reeves never asked for nor did he receive legal aid to pursue a counterclaim against the company until March 1980. In my judgment the certificates are conclusive on this issue. The judge thought that he had power in effect to amend the certificate on the ground that the local legal aid committee ... must have intended to grant legal aid to Mr Reeves to pursue the counterclaim ... Search as I will, I can find no provision in the legislation which enables the court to do this. ... The area committee has never been asked to amend the certificate and for my part I do not think that there was any mistake in the certificate. The mistake was in the application; it was the mistake of Mr Reeves' solicitors; on each occasion they got exactly what they asked for. In the present case I am not prepared to speculate as to what kind of mistake the area committee is entitled to correct, but I am satisfied that it would have no power to make an amendment which would have the effect of backdating legal aid so as to affect the rights to costs which have accrued in the meantime." (p.204)
In his dissenting judgment, Lord Denning MR said this:
"No one treated the certificate as confined to the `defence' by Mr Reeves. He had no defence to the action. Legal aid would not have been granted for a defence which did not exist. Everyone treated the certificate as extending to the `counterclaim' by Mr Reeves for fraud on the sale of a business ... (p.186)
To apply [s.13(3)(a) of the 1974 Act] in this case, it is important to distinguish between the claim of [the company] and the counterclaim by Mr Reeves for fraud. ... Seeing that the counterclaim arose out of an entirely separate transaction which had no connection whatever with the claim, it was not available as a set off, legal or equitable ... . It was `separate proceedings', for which a separate writ and certificate could have been granted to Mr Reeves ... (p.189)
It is significant that when, on March 7, 1980, attention was drawn to the mistake, the clerks immediately rectified it. They did it without reference to the legal aid committee. They did it because they realised that a mistake had been made and that it should be put right at once. (pp.190-191).
I have been privileged to read in advance the judgments prepared by Dunn and O'Connor LJJ. I am distressed to find that they feel that the mistake made in the legal aid certificate cannot be remedied in any way. It must remain uncorrected for ever. The result is that the solicitors for Mr Reeves cannot get any of their costs out of the legal aid fund, nor can [the company] either, for any of the work done in the 2½ years from November 21 1977 to March 7 1980, during which there were very expensive interlocutory proceedings. All they can get is the costs of the counterclaim for the three days from March 7 to 10, 1980 ..." (p.193)
It is, I think, important to recognise that the disagreement between Lord Denning and the majority of the court extended not merely to the result of the appeal but also to (a) the availability of the counterclaim there as an equitable set off and (b) the entitlement of Mr Reeves' solicitors to recover their own costs out of the legal aid fund. To this end I must refer to short further passages in the judgments of the majority. O'Connor LJ, having noted the Law Society's (third) contention "that the costs incurred by the company are costs in the claim and therefore do not qualify under s.13 of the Act", said this:
"The third contention of the Law Society depends upon the following propositions: (i) The costs of defending a claim are to be taxed as the costs of the claim, (ii) Where the only defence to a claim is an equitable set off itself depending upon a counterclaim the costs of the issues raised by the counterclaim are to be taxed as costs in the claim, (iii) That in this case the only order which the court can make under s.13 of the Legal Aid Act 1974 is in respect of costs which could be properly taxed as costs of the counterclaim and the submission is that there are none." (p.204)
O'Connor LJ in fact felt able to distinguish the Court of Appeal's decision in Millican v Tucker [1980] 1 WLR 640 on which the Law Society's third proposition had in large part rested, and concluded that a division of the costs between claim and counterclaim was possible. Dunn LJ too noted the Law Society's argument on this point and that:
"This submission depended on the well established rule that where, as here, the defence consists of a counterclaim which is properly set off so as to reduce or extinguish the claim, the costs of the counterclaim are properly to be regarded as the costs of defending the claim, except and insofar as those costs are solely attributable to the counterclaim, for example by proving the amount of damage which would arise thereunder." (p.202)
He agreed with O'Connor LJ's judgment on the point and was content to adopt his reasoning.
It seems clear to me, therefore, that on the view of the majority there was indeed a defence to the action by way of equitable set-off (had the counterclaim been made good) and that the costs fell to be divided between claim and counterclaim. On the Law Society's primary case, indeed, the whole of the costs were properly attributable to the claim so that, as I infer, Reeves' solicitors had been able to recover their costs under the certificate as costs attributable to defending the claim. There was no question of Reeves' solicitors having joined the Company in resisting the Law Society's appeal. It was the Company alone who needed the original certificate issued in November 1977 to be amended (or treated as amended) so as to authorise a counterclaim since it was only if and insofar as their costs were held attributable to defending an assisted party's counterclaim that, because of s.13(3)(a) of the 1974 Act, they could recover from the legal aid fund. Of course there was, as both Dunn LJ and O'Connor LJ remarked, a mistake on the part of Reeves' solicitors in not originally asking for the certificate to cover a counterclaim as well as a defence. But Lord Denning was wrong in suggesting that there was no defence to the action and that legal aid would not have been granted for a defence which did not exist. The bulk (indeed, as the Law Society had thought, the whole) of Reeves' costs were covered by the certificate even without reference to a counterclaim. It was really only the technical requirement that Reeves should be an assisted claimant rather than an assisted defendant which made it important from the Company's standpoint that the certificate throughout permitted a counterclaim.
As will have been noted, O'Connor LJ was "not prepared to speculate as to what kind of mistake the area committee is entitled to correct". It seems to me, however, necessary to do so if we are to discern the true nature of this power. In his very full skeleton argument Mr Harvie appeared to contend that regulation 51(a) could never be invoked to amend the certificate if the error was occasioned by an error in the application itself. The two examples he gave of where perhaps a mistake could be corrected were (a) where the solicitors sought, and the area office agreed, an increase in the costs condition to £100,000 "but because of a data inputting error the amended certificate showed a costs condition of only £10,000"; and (b) "where a solicitor correctly asked for the scope of the certificate to be amended to cover all steps up to and including trial, where such a request was agreed by the area office, but where the certificate indicated a narrower scope, such as limited to exchange of witness statements and disclosure of evidence".
No doubt the certificate could indeed be amended in such circumstances but the power could hardly have been created for so limited a purpose: the solicitors, assuming they noted such obvious mistakes, would simply ask for a proper certificate or amendment to be issued. To my mind the power exists essentially to allow for amendment in circumstances where the need for such amendment (and more particularly the need for retrospective authorisation of the costs in question) only appears at a later date. During the course of the hearing, indeed, Mr Harvie appeared to soften his position.
Instances of the proper use of the power were put before us in the shape of two unreported judicial review decisions:
1. The decision of Popplewell J in R v Legal Aid Board ex parte Nicholson, 14 June 1994, holding that the Board had properly amended a certificate with retrospective effect to show a change of solicitors from the date when new solicitors had taken over the practice of a struck off solicitor, the new solicitors and the Board having wrongly believed no such amendment to be necessary. The amendment had been challenged by the unsuccessful assisted party who had hoped thereby to avoid the Legal Aid Authority's charge over the disputed property.
2. The decision of Moses J in R v Legal Aid Board ex parte Anderton, 13 May 1999, upholding a solicitor's challenge to the Board's refusal to amend a certificate - more particularly to amend a certified amendment of a certificate extending it to cover an appeal - so that its number correctly accorded with that of the certificate issued in relation to that [first] action. The solicitors had mistakenly applied for the amendment by reference to the number of a different certificate issued in respect of a separate action. Moses J held that:
"[the amended] certificate contained an error, admittedly an error induced by the application but nonetheless an error in the certificate covering the proceedings in the first action."
As to Thew v Reeves he said:
"... the essential distinction is that there was no error in the certificate the subject matter of the Thew case. It merely did not cover that which it ought to have done. In the instant case, the first certificate ... did cover legal aid for the appeal but that certificate was wrongly identified."
With these considerations in mind I turn to the proper approach to regulation 51(a) about which I understand both sides now to be in substantial agreement. There will be a mistake in the certificate, submits Mr Harvie, if, but only if, the following three conditions are clearly satisfied: (i) the relevant extension to the scope of the certificate must have been applied for; (ii) the Legal Aid Board must have understood that and applied its mind to that application; (iii) the Legal Aid Board must have decided to grant such an extension but issued a certificate inconsistent with that decision.
Essentially, as it seems to me, it is the application of that approach to the facts of this case about which the parties now disagree. The judge below said this:
"In deciding whether there is `some mistake' in the certificate the area director is, in my view, entitled to look not merely at the form but also the substance of the application which was made to the Board and at the substance of the Board's consideration and determination of that application. As soon as that is done, it is plain that, although box 1 [the box inviting the removal of the limitation] was not ticked in the 1996 application form, [Edwin Coe] was asking for an increase in the cost limit, not so that more could be spent in settling a defence prior to its issue or service, but to deal with specific post-defence work: summons for directions and discovery. The detailed justification which accompanied the application did not merely enclose the points of defence; it also informed the respondent that `further and better particulars of the further and better particulars' had been served on behalf of [Mr Moukarzel]."
He distinguished Thew v Reeves as follows:
"In that case the application was clearly confined, on its face, to the defence and erroneously did not include the counterclaim. The error was realised by the writer of the synopsis ... but the certificate reflected the application so the applicant got what he (erroneously) asked for. Here the dispute is: what work was described by the applicant in the 1996 application? As soon as one looks ... at the form as a whole ... it is clear that the applicant was seeking authorisation `to deal with summons for directions and discovery'. That is what was considered and authorised by Miss Turner notwithstanding the lack of the tick in box 1."
Mr Harvie challenges that view and submits, indeed, that this case is indistinguishable from Thew v Reeves. By the same token that legal aid there was applied for solely `to defend' the proceedings, so too here the applied for increase in legal aid cover to £80,000 was made subject to the continuing application of the limitation clause. And whilst it is true that the documents accompanying the application here made it plain that the defence had long since been served, so too it was clear from the synopsis in Thew v Reeves that Reeves' liability to the company was accepted subject only to his counterclaim. That was, of course, a point emphasised by Lord Denning and, indeed, emphasised by him afresh when on a related issue the case returned to the Court of Appeal - see R & T Thew Limited v Reeves (No.2) [1982] QB 1283.
For my part, I recognise that the distinction between this case and Thew v Reeves is a narrow one but I share the view of the judge below that it can properly be made. The essential distinction I would draw is between the certificate there which - given the majority view as to the availability of an equitable set-off for the counterclaim - made perfect sense even though it should sensibly have been widened to include express provision for a counterclaim, and the certificate here which was intrinsically illogical given that £80,000 had been sought (£100,000 ultimately being authorised), that the work for which it was sought was the summons for directions and discovery, and that it was plain from the application as a whole that the defence had long since been served.
It was Wallace v Freeman Heating Co. Ltd. [1955] 1 WLR 172 which first established that a legal aid certificate cannot retrospectively be amended to authorise a particular step or expense (there the bespeaking of a transcript of evidence) which had not previously been applied for or by necessary impliction granted. Thew v Reeves carried that principle to its furthermost limits. It may be regarded as a somewhat technical decision. It should certainly not be extended.
When one comes to consider the three conditions which both sides now agree must be considered, there can in my judgment be no doubt that they are all satisfied. The relevant extension to the scope of the certificate being sought here was the expenditure of £80,000 (£100,000 being granted) to deal with the summons for directions and discovery (condition 1); that is clear. It is to my mind no less clear that the Board understood and applied its mind to that application (condition 2) and that it decided to grant it (condition 3). There is, of course, no doubt that the certificate as issued was inconsistent with that decision: the limitation clause precluding even the service of the defence remained in place when plainly it should not have done. In short, the certificate as issued failed to reflect the decision actually made by the Board.
Mr Harvie submits that it would be quite wrong to expect the Board's case-workers to "ferret around" to see what solicitors are asking for which is different from what appears on the application form. I agree. There can be no question of blaming the case-worker here (or for that matter the solicitor, Ms Turner, who in fact decided this application) for not noticing the inconsistency between the extension granted and the limitation left in place. The fault was clearly that of Edwin Coe. But fault is not the same as mistake and the mere fact that it was the solicitor's fault which induced the mistake does not prevent the correction of that mistake by amendment under regulation 51(a) - precisely as Moses J decided in Anderton.
Mr Harvie tells us that the Legal Aid Board now fear a flood of litigation. For my part I cannot see why. I repeat, there is no duty on their case-workers to process applications any differently from their present system. The responsibility for ensuring that applications are properly made and that the certificates issued properly cover the work proposed remains squarely upon the solicitors applying. And if, as here, retrospective amendment is sought, there will be a heavy burden on the solicitor to satisfy the above three conditions. In my judgment that burden has clearly been discharged in this case. I doubt, however, whether it often will be.
The one final matter I must deal with is the fact that, where regulation 51(a) applies, it confers a power rather than imposes a duty upon the Area Director. If, of course, amendment of the certificate would prejudice the unassisted party or, indeed, the assisted party, then the Area Director could properly exercise his discretion against amendment. But if, as in this case, no such prejudice arises, then one must expect the power to be exercised. Here, it is plain, the only reason it has not been exercised is that the Area Director wrongly, as I would hold, has directed himself that there was no mistake in the certificate issued.
LORD JUSTICE JUDGE:
I agree with the judgment of Simon Brown LJ.
The language of regulation 51(a) of the Civil Legal Aid (General) Regulations 1989 could not be simpler. It provides:
"The Area Director may amend a certificate where in his opinion:
(a) there is some mistake in the certificate ......."
The power so granted, apparently widely drawn, is not otherwise defined or limited.
In R & T Thew Limited v Reeves [1982] QB 172 this court held that the power granted by the regulation cannot be exercised when the mistake in the certificate is the result of an error by the solicitor for the legally aided party, or the legally aided party himself. Even if the error should have been apparent from the material made available to the Legal Aid Board, if what the certificate records is "exactly what they asked for" (per O'Connor LJ, at p204) the mistake is not susceptible to correction under the regulation.
The Area Director believed that the decision in R & T Thew Limited precluded the exercise of the amending power provided by regulation 51(a). However, as Simon Brown LJ's analysis demonstrates, the present case raises a different question. True, the solicitor was responsible for the mistaken form of the certificate. So, on first impression, the effect of R & T Thew Limited is that the power to amend should not be, indeed cannot be exercised. In the present case however, the certificate was erroneous in an important concurrent respect. In short, it failed accurately to reflect the decision of the Legal Aid Board about the extent of legal aid granted to Mr Moukarzel. In my judgment it is axiomatic, and not surprisingly counsel agree, that a legal aid certificate should always record the actual decision. If it does not, then whoever may have been at fault and however the responsibility is to be apportioned, it properly falls within the ambit of the Area Director's power to amend. Indeed if this power is not to be exercised in such circumstances it is difficult to see why it should ever be exercised.
Whether that power should be exercised depends on the facts of the individual case, and perhaps more particularly, the time when the Area Director is invited to exercise it, and the possible adverse consequence of its exercise on third parties. Here no such question arises. There is nothing to prevent him from exercising the power under regulation 51(a).
I therefore agree that this appeal should be dismissed.
LORD JUSTICE TUCKEY:
I agree for the reasons given in both judgments that this appeal should be dismissed.