England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME WITH APPEAL
TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Wednesday, 6th June 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal out of time and for the appeal to be heard and dealt with, if permission is granted, in respect of one very limited aspect arising out of some complex litigation brought by the claimant Mr Khan-Ghauri in four actions against, amongst others, the Dunbar Bank Plc.
2. Following the failure of that litigation on the part of Mr Khan-Ghauri and an order made against him by Mr Justice Pumfrey on 15th June 2000, Mr Khan-Ghauri sought permission to appeal the general merits of Mr Justice Pumfrey's order and judgment in an application which came before Lord Justice Peter Gibson on 8th February 2001. In a full judgment, to which I would respectfully refer, Lord Justice Peter Gibson refused permission in respect of all aspects of that application save for one minor aspect which concerned him on that occasion and that arose out of Mr Khan-Ghauri's legal aid position. One of the orders made on 15th June 2000 by Mr Justice Pumfrey was the order contained in paragraph 3 -

"that costs are to be paid by the claimant to the defendant on an indemnity basis subject to detailed assessment if not agreed".

3. Lord Justice Peter Gibson was concerned that because, for part of the time, Mr Khan-Ghauri may have been an assisted person obtaining legal aid under a legal aid certificate, that matter should stand over and come back before this court on another occasion. What Lord Justice Peter Gibson did was to refuse Mr Khan-Ghauri all aspects of his application for permission to appeal, including his application in respect of Mr Justice Pumfrey's order that costs be paid on an indemnity basis, but to preserve the point arising out of Mr Khan-Ghauri's legal aid position for this occasion.
4. That limited matter has come before us today. Mr Khan-Ghauri, in his submissions, has sought to widen the scope of his adjourned application. He has been listened to but it has been pointed out to him that the court today is only concerned with the limited aspect of the order for costs which I have described. In the meantime certain legal aid certificates have come forward, the interpretation of which is somewhat obscure. Mr Francis, who appears on behalf of Dunbar Bank Plc, has put forward a proposal for a draft order, which Mr Khan-Ghauri has been able to consider, which is designed to make allowance for any period during which Mr Khan-Ghauri was an assisted person. Mr Khan-Ghauri submits that we should permit no order for costs to be made.
5. It seems to me nevertheless that what should be done is as follows. Mr Khan-Ghauri's time for making this application for permission to appeal in respect of this limited point on the costs order should be extended. Permission should be granted and the costs order should be amended so as to read as follows:

"that the claimant do pay the defendants' costs of the aforementioned actions on an indemnity basis, such costs to be subject to detailed assessment if not agreed, provided that the claimant's liability incurred for any period during which he was an assisted person in relation to such actions shall not exceed the amount which, pursuant to Section 17 of the Legal Aid Act 1988, it may be reasonable for him to pay".

6. The reference to section 17 of the Legal Aid Act 1988 is because Mr Francis has shown us that although section 11 of the Access to Justice Act 1999 came into force on 1st April 2000 there was nevertheless under the Access to Justice Act 1999 (Commencement No 3, Transitional Provisions Savings) Order 2000, Statutory Instrument 2000 No 774, a transitional provision in article 5 of that order, the effect of which was to preserve the application of the earlier 1988 Act in respect of legal aid representation under Part 14 of the Act signed before 1st April 2000, which appears to be what happened in this case. Therefore, the reference in the order is to the Legal Aid Act 1988 rather than the Access to Justice Act 1999.
7. LORD JUSTICE CHADWICK: I agree.
8. LORD JUSTICE KENNEDY: I also agree.
Order: Application allowed