England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
LEEDS DISTRICT REGISTRY
His Honour Judge Behrens (sitting as a High Court Judge)
4LS90209

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/02/2012

Lord Justice Tomlinson :

1. As long ago as 2004 Sean Price and other travellers unlawfully parked their caravans on land in Wakefield owned by the Appellants, Leeds City Council, to whom I shall refer hereafter as "the Council". The land was ordinarily used for recreational purposes by all members of the local community. The Council brought proceedings against the travellers seeking possession. The Council succeeded in the High Court sitting at Leeds. The travellers appealed first to the Court of Appeal and then to the House of Lords. On 8 March 2006 their Lordships dismissed the travellers' second appeal. The travellers had obtained legal aid for the purposes of pursuing their appeal to the House of Lords. We are not concerned with whatever may have been the position before the lower courts. After considering separate submissions on costs, on 11 May 2006 the House of Lords issued an Order in the following terms:-

"Leeds City Council (Respondents) v Price and others and others (FC) (Appellants)

_________________________________________

ORDER OF THE HOUSE OF LORDS

__________________________________________

11 MAY 2006

Upon further consideration and further to the Order of the House of Wednesday 8 March 2006 (41^st Report Session 2005-06; [2006] UKHL 10) of what was offered on either side in the Cause Leeds City Council against Price and others and others, on the question of costs:

It is Ordered, by the Lords Spiritual and Temporal in the Court of Parliament of her Majesty The Queen assembled, That the appellants do pay or cause to be paid to the respondents their costs in this House, the amount thereof, if any, to be paid by the appellants and to be paid out of the Community Legal Service Fund to be certified by the Clerk of the parliaments in accordance with section 11 of the Access to Justice Act 1999: And it is further Ordered, That the costs of the appellants in this House be taxed in accordance with the Access to Justice Act 1999: And it is also further Ordered, That there be no order for costs in her Majesty's Court of Appeal and that, so far as regards costs in the High Court of Justice Queen's Bench Division Leeds District Registry, the Order of His Honour Judge Bush of 25 October 2004 be affirmed."

The Order was signed by the Clerk of the Parliaments.

That Order made pursuant to s.11 of the Access to Justice Act 1999 is, we were told, in common form. Section 11 of the 1999 Act provides:-

"Community Legal Service

11. Costs in funded cases.

This section has no associated Explanatory Notes

(1) Except in prescribed circumstances, costs ordered against an individual in relation to any proceedings or part of proceedings funded for him shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including—

(a) the financial resources of all the parties to the proceedings, and

(b) their conduct in connection with the dispute to which the proceedings relate;

and for this purpose proceedings, or a part of proceedings, are funded for an individual if services relating to the proceedings or part are funded for him by the Commission as part of the Community Legal Service.

(2) In assessing for the purposes of subsection (1) the financial resources of an individual for whom services are funded by the Commission as part of the Community Legal Service, his clothes and household furniture and the tools and implements of his trade shall not be taken into account, except so far as may be prescribed.

(3) Subject to subsections (1) and (2), regulations may make provision about costs in relation to proceedings in which services are funded by the Commission for any of the parties as part of the Community Legal Service.

(4) The regulations may, in particular, make provision—

(a) specifying the principles to be applied in determining the amount of any costs which may be awarded against a party for whom services are funded by the Commission as part of the Community Legal Service,

(b) limiting the circumstances in which, or extent to which, an order for costs may be enforced against such a party,

(c) as to the cases in which, and extent to which, such a party may be required to give security for costs and the manner in which it is to be given,

(d) requiring the payment by the Commission of the whole or part of any costs incurred by a party for whom services are not funded by the Commission as part of the Community Legal Service,

(e) specifying the principles to be applied in determining the amount of any costs which may be awarded to a party for whom services are so funded,

(f) requiring the payment to the Commission, or the person or body by which the services were provided, of the whole or part of any sum awarded by way of costs to such a party, and

(g) as to the court, tribunal or other person or body by whom the amount of any costs is to be determined and the extent to which any determination of that amount is to be final."

2. Section 11(4)(a) thus envisages the making of regulations providing for the manner in which it is to be determined in what amounts costs may be awarded against a legally aided party. Section 11(4)(d) envisages the making of regulations providing for the circumstances in which the Legal Services Commission, hereinafter "the LSC", may be required to pay part or all of the costs of a party such as the Council which has prevailed against a legally aided party. Such regulations have been made in the shape of The Community Legal Services (Costs) Regulations 2000, SI 2000 No 441, and the Community Legal Services (Cost Protection) Regulations 2000, SI 2000 No 824, as amended, to which I shall refer hereinafter as "the Costs Regulations" and "the Cost Protection Regulations" respectively.
3. The nature of the jurisdiction under s.11 of the 1999 Act and the regulatory scheme made pursuant thereto was considered at length by this court in R(on the Application of Gunn) v Secretary of State for the Home Department [2001] 1WLR 1634. Essentially it is a two-stage process. The Order of the House of Lords of 11 May 2006 comprised stage 1 in that process. The House of Lords decided, first, that the travellers should pay the Council's costs incurred in the appeal to their Lordships House. The House decided, second, that the amount, if any, of the costs to be paid by the travellers, and the question whether the LSC should be directed to pay that or any amount to the Council on account of its costs, should be certified by the Clerk of the Parliaments, in accordance with s.11 of the 1999 Act. That was shorthand for 'in accordance with the regulations made pursuant to s.11 of the 1999 Act'.
4. In the ordinary way one would have expected the Council to follow the steps prescribed by the Regulations to be taken by a party such as the Council, now known also as "the receiving party", in whose favour a stage 1 order under s.11 of the 1999 Act had been made. Had it done so the LSC would have been involved in the assessment of the Council's costs and would have had the opportunity to make representations on the question whether it is just and equitable in the circumstances that provision for those costs should be made out of public funds. For whatever reason, it seems never to have been contemplated in this case that the travellers would actually themselves be required to pay any part of the costs of the Council which, nominally, they had been ordered to do. It is because the Council did not take the prescribed steps that now, nearly six years since the conclusion of the substantive proceedings, it is still pursuing the LSC for a contribution to its costs. At bottom therefore the issue is simply out of which public fund the costs will be borne. But of course, even in times when budgets are not so straitened as they are now, the resolution of this question carries consequences for the respective budget holders and the persons for whose benefit those funds are ordinarily disbursed. In consequence of the decision of Judge Behrens, sitting as a judge of the High Court in Leeds, the loss lies with the Council. Hence this appeal.
5. Taxation or assessment of costs in the House of Lords was governed by Practice Directions agreed by the Appeal Committee and promulgated at its direction by the Clerk of the Parliaments in November 2003. Those Directions included:-

"1. INTRODUCTION

1.1   Taxations (assessments of costs) in the House of Lords are conducted by the Taxing Officers. There are two Taxing Officers: the Head of the Judicial Office and the Senior Costs Judge of the Supreme Court of England and Wales or any costs judge nominated by him. The Taxing Officers normally sit together as a court of two.

1.2   The Taxing Clerk is an official in the Judicial Office of the House of Lords acting under the direction of the Taxing Officers

. . .

4. ORDERS UNDER SECTION 11 OF THE ACCESS TO JUSTICE ACT 1999

4.1   Any costs ordered to be paid by a LSC funded party must not exceed the amount which is a reasonable one for them to pay having regard to all the circumstances including the financial resources of all the parties to the proceedings and their conduct in connection with the dispute to which the proceedings relate (Access to Justice Act 1999, section 11)5.

4.2   Costs which were incurred by one party during a period when another party was LSC funded and which are not recoverable from the LSC funded party only because of section 11 of the Access to Justice Act 1999 may, in certain circumstances, be payable by the LSC itself.

4.3   The Community Legal Service (Costs) Regulations 2000 and the Community Legal Service (Costs Protection) Regulations 2000 are Regulations made under section 11 of the Access to Justice Act 1999 and provide a code governing orders for costs against LSC funded parties and against the LSC.

4.4   A party who seeks costs against the LSC under section 11 of the Access to Justice Act 1999, or who may do so, depending upon the amount of costs payable by the LSC funded party, must lodge with his bill of costs copies of any documents (including a statement of resources and any notice served by him on the LSC) which he has served upon others in compliance with the regulations.

4.5   Within 21 days of being served with a bill of costs to which section 11 of the Access to Justice Act 1999 applies, a party who is or was LSC funded during any period covered by the bill must respond by lodging in the Judicial Office a statement of resources and serving a copy of it on the receiving party and, where relevant, on the Regional Director of the LSC.

4.6   The Regional Director of the LSC may appear at any hearing at which a costs order may be made against the LSC.

5. LODGMENT

5.1   Bills of costs for taxation must be lodged within three months of either:

(a)   the date on which the final judgment in the appeal is delivered; or

(b)   the date on which a petition for leave to appeal is dismissed by an Appeal Committee; or

(c)   the date on which a petition for leave or a petition of appeal is withdrawn.

6. EXTENSION OF TIME

6.1   If an extension of the three month period is desired, application must be made in writing to the Taxing Officer before the end of that period. Copies of all such correspondence should be sent to all interested parties.

6.2   Applications for extensions of time are also accepted even if made after the expiry of the three month period. In deciding whether to grant an application the Taxing Officer takes into account all the circumstances, including:

(a)   the interests of the administration of justice;

(b)   whether the failure to lodge in time was intentional;

(c)   whether there is a good explanation for the failure to lodge in time;

(d)   the effect which the delay has had on each party; and

(e)   the effect which the granting of an extension of time would have on each party."

6. It should be noted that the Practice Directions were of application to all assessments of costs in the House of Lords. Paragraphs 5 and 6 set out above are therefore of general application, whereas paragraph 4 deals solely with orders made under s.11 of the 1999 Act.
7. Paragraph 4.3 of the Practice Directions refers to the Regulations made under s.11 of the 1999 Act to which I have already made reference at paragraphs 2 and 3 above. So far as relevant these provide:-

"The Community Legal Service (Costs) Regulations 2000 (as amended)

2. Interpretation

In these Regulations -

"the Act" means the Access to Justice Act 1999;

"client" means an individual who receives funded services;

"Commission" means the Legal Services Commission established under section 1 of the Act;

"costs order" means an order that a party pay all or part of the costs of proceedings;

"costs order against the Commission" means an order, made under regulation 5 of the Community Legal Service (Cost Protection) Regulations 2000 (but not one under regulation 6 of those Regulations), that the Commission pay all or part of the costs of a party to proceedings who has not received funded services in relation to those proceedings under a certificate, other than a certificate which has been revoked;

. . .

9. Procedures for ordering costs against client and Commission

(1) Where the court is considering whether to make a section 11(1) costs order, it shall consider whether, but for cost protection, it would have made a costs order against the client and, if so, whether it would, on making the costs order, have specified the amount to be paid under that order.

(2) If the court considers that it would have made a costs order against the client, but that it would not have specified the amount to be paid under it, the court shall, when making the section 11(1) costs order:

(a) specify the amount (if any) that the client is to pay under that order if, but only if:

(i) it considers that it has sufficient information before it to decide what amount is, in that case, a reasonable amount for the client to pay, in accordance with section 11(1) of the Act; and

(ii) it is satisfied that, if it were to determine the full costs at that time, they would exceed the amount referred to in sub-paragraph (i);

(b) otherwise, it shall not specify the amount the client is to pay under the costs order.

(3) If the court considers that it would have made a costs order against the client, and that it would have specified the amount to be paid under it, the court shall, when making the section 11(1) costs order:

(a) specify the amount (if any) that the client is to pay under that order if, but only if, it considers that it has sufficient information before it to decide what amount is, in that case, a reasonable amount for the client to pay, in accordance with section 11(1) of the Act;

(b) otherwise, it shall not specify the amount the client is to pay under the costs order.

(4) Any order made under paragraph (3) shall state the amount of the full costs.

(5) The amount (if any) to be paid by the client under an order made under paragraph (2)(b) or paragraph (3)(b), and any application for a costs order against the Commission, shall be determined in accordance with regulation 10, and at any such determination following an order made under paragraph (2)(b), the amount of the full costs shall also be assessed.

(6) Where the court makes a section 11(1) costs order that does not specify the amount which the client is to pay under it, it may also make findings of fact, as to the parties' conduct in the proceedings or otherwise, relevant to the determination of that amount, and those findings shall be taken into consideration in that determination.

10.—(1) The following paragraphs of this regulation apply where the amount to be paid under a section 11(1) costs order, or an application for a costs order against the Commission, is to be determined under this regulation, by virtue of regulation 9(5).

(2) The receiving party may, within three months after a section 11(1) costs order is made, request a hearing to determine the costs payable to him.

(3) A request under paragraph (2) shall be accompanied by:

(a) if the section 11(1) costs order does not state the full costs, the receiving party's bill of costs, which shall comply with any requirements of relevant rules of court relating to the form and content of a bill of costs where the court is assessing a party's costs;

(b) unless the conditions set out in paragraph (3A) are satisfied, a statement of resources; and

(c) if the receiving party is seeking, or, subject to the determination of the amount to be paid under the section 11(1) costs order, may seek, a costs order against the Commission, written notice to that effect.

(3A) The conditions referred to in paragraph (3)(b) above are that—

(a) the court is determining an application for a costs order against the Commission;

(b) the costs were not incurred in a court of first instance.

(4) The receiving party shall file the documents referred to in paragraph (3) with the court and at the same time serve copies of them:

(a) on the client, if a determination of costs payable under section 11(1) of the Act is sought; and

(b) on the Director, if notice has been given under paragraph (3)(c).

(5) Where documents are served on the client under paragraph (4)(a), the client shall make a statement of resources.

. . .

(9) If the client files a statement of resources in accordance with paragraph (6), or the period for filing such notice expires, or if the costs payable by the client have already been determined, the court shall set a date for the hearing and, at least 14 days before that date, serve notice of it on:

(a) the receiving party;

(b) the client (unless the costs payable by the client have already been determined); and

(c) if a costs order against the Commission is or may be sought, the Director.

(10) The court's functions under this regulation may be exercised:

(a) in relation to proceedings in the House of Lords, by the Clerk to the Parliaments;

. . .

(11) The amount of costs to be determined under this regulation may include the costs incurred in relation to a request made under this regulation.

The Community Legal Service (Cost Protection) Regulations 2000 (as amended)

[The Interpretation section contains similar definitions to those found in the Costs Regulations.]

5. Costs order against Commission

(1) The following paragraphs of this regulation apply where:

(a) funded services are provided to a client in relation to proceedings;

(b) those proceedings are finally decided in favour of a non-funded party; and

(c) cost protection applies.

(2) The court may, subject to the following paragraphs of this regulation, make an order for the payment by the Commission to the non-funded party of the whole or any part of the costs incurred by him in the proceedings (other than any costs that the client is required to pay under a section 11(1) costs order).

(3) An order under paragraph (2) may only be made if all the conditions set out in sub-paragraphs (a), (b), (c) and (d) are satisfied:

(a) a section 11(1) costs order is made against the client in the proceedings, and the amount (if any) which the client is required to pay under that costs order is less than the amount of the full costs;

(b) [unless there is a good reason for the delay,]7 the non-funded party makes a request under regulation 10(2) of the Community Legal Service (Costs) Regulations 2000 within three months of the making of the section 11(1) costs order;

. . .

(d) in any case, the court is satisfied that it is just and equitable in the circumstances that provision for the costs should be made out of public funds.

[(3A) An order under paragraph (2) may be made—

(a) in relation to proceedings in the House of Lords, by the Clerk to the Parliaments;

. . .

(4) Where the client receives funded services in connection with part only of the proceedings, the reference in paragraph (2) to the costs incurred by the non-funded party in the relevant proceedings shall be construed as a reference to so much of those costs as is attributable to the part of the proceedings which are funded proceedings.

. . .

(6) Subject to paragraph (7), in determining whether the conditions in paragraph (3)(c) and (d) are satisfied, the court shall have regard to the resources of the non-funded party and of his partner.

(7) The court shall not have regard to the resources of the partner of the non-funded party if the partner has a contrary interest in the funded proceedings.

(8) Where the non-funded party is acting in a representative, fiduciary or official capacity and is entitled to be indemnified in respect of his costs from any property, estate or fund, the court

shall, for the purposes of paragraph (3), have regard to the value of the property, estate or fund and the resources of the persons, if any, including that party where appropriate, who are beneficially interested in that property, estate or fund.

7. Effect of these Regulations

(1) No order to pay costs in favour of a non-funded party shall be made against the Commission in respect of funded proceedings except in accordance with these Regulations, and any costs to be paid under such an order shall be paid out of the Community Legal Service Fund.

(2) Nothing in these Regulations shall be construed, in relation to proceedings where one or more parties are receiving, or have received, funded services, as:

(a) requiring a court to make a costs order where it would not otherwise have made a costs order; or

(b) affecting the court's power to make a wasted costs order against a legal representative."

8. The judge made essentially the following points about the Regulations and the Practice Directions, with all of which I respectfully agree:-

1) The Court has no power to award costs against the LSC except in accordance with the Regulations. This is clear from paragraph 7 of the Cost Protection Regulations.

2) Before there can be an order against the LSC each of the four conditions set out in paragraph 5(3) of the Cost Protection Regulations must be satisfied. For present purposes condition (b) is relevant. Unless there is a good reason there must be a request under paragraph 10(2) of the Costs Regulations within three months of the making of the section 11(1) costs order. The words in square brackets, which give to the court power to extend the three month limit where there is good reason for the delay, were added by amendment.

3) Where the receiving party is seeking an order against the LSC the request made under paragraph 10(2) of the Costs Regulations must include written notice to that effect – see paragraph 10(3)(c) of the Costs Regulations.

4) Under paragraph 10(4) the receiving party is required to serve copies of the documents, including the written notice if such has been given, on the Director, which here, by virtue of the interpretation section in the Costs Regulations means any Director appointed by the LSC in accordance with the Funding Code and any other person authorised to act on his behalf except a supplier.

5) Where the relevant section 11 costs order has been made by the House of Lords, the determination whether it is just and equitable that the LSC should be required to pay the whole or any part of the costs of the non-funded party is to be made by the Clerk of the Parliaments. No other court or official has jurisdiction – see Gunn op cit at page 1646 paragraph 34.

6) The criteria to be taken into account by the House of Lords Taxing Officer when considering a request for an extension of time in which to lodge a bill of costs for taxation beyond three months are not the same as the single criterion to be taken into account when considering an application under paragraph 5(3)(b) of the Cost Protection Regulations to extend the three month period in which a request must be made by a non-funded party for a costs order against the LSC. In the latter case the sole matter to be taken into account is whether there is good reason for the delay. In the former case, which as already noted is of general application, the Taxing Officer is required to take into account all of the circumstances, the question whether there is a good explanation for the failure to lodge in time being only one such circumstance.

9. The relevant three month period applicable both under the general provisions of the Practice Directions and under paragraph 10(2) of the Costs Regulations expired on 11 August 2006. No bill of costs was submitted by that date. On 15 September 2006 the Costs Draftsman instructed by the Council wrote to the Judicial Taxing Clerk at the Judicial Office of the House of Lords informing him that he was arranging for the bill of costs to be sent to him. The Costs Draftsman noted that the three month period in which to lodge the bill had been "exceeded slightly". He continued:-

"As a result of this we shall also provide a formal request for an extension of time for the submission of the bill of costs, copies of which are also being sent to all interested parties.

We enclose for your perusal a copy of the bill. You will observe that the costs are to be dealt with in accordance with s.11 of the Access to Justice Act 1999. The Respondents are of course a "local authority" and as such we assume that we need not have to provide (sic) details of their financial status."

10. The Council's bill of costs was formally submitted under cover of an undated letter from the Costs Draftsman, copied also to the solicitors for the travellers, which was received by the latter and probably also therefore by the Judicial Taxing Clerk in the Judicial Office of the House of Lords on 3 October 2006. That letter included the following:-

"We previously advised that the bill is being submitted slightly outside the prescribed time period. We would respectfully request that you extend the time period for lodging the bill without any penalty being imposed.

A copy of the bill has also been sent to the solicitors for the Appellants. The Interveners have no interest in the costs sought by the Respondent."

There was no explanation for the delay. The Appellants were of course the travellers. The Interveners were the First Secretary of State, Justice and the National Council for Civil Liberties. Neither a copy of the letter nor of the bill of costs was sent to the LSC.

11. There was included with the letter and the bill of costs no written notice as required by paragraph 10(3)(c) of the Costs Regulations to the effect, if it was the case, that an order was sought against the LSC unless such notice is to be found, as in the submission of Mr Mark Friston for the Council it is, in the following wording which appears on the title page of the bill of costs itself:-

"Respondent's bill of costs to be Certified by the Clerk of the Parliaments in Accordance with Section 11 of the Access to Justice Act 1999 to be paid by the Appellants out of the Community Legal Service Fund."

It is to be observed that the Appellants are identified on the same page as Sean Price, six other persons and persons unknown. There is no reference to the LSC. The "Community Legal Service Fund" is the name given by the 1999 Act to the civil legal aid fund. It is identified at paragraph 7 of the Cost Protection Regulations as the fund out of which costs ordered to be paid by the LSC to a non-funded party are in fact to be paid.

12. No copy of the bill of costs or of the covering letter was served on the LSC or any Director, Regional or otherwise or appointed thereby.
13. On 25 January 2007 the Judicial Taxing Clerk of the Judicial Office at the House of Lords returned the bill of costs to the Council's Costs Draftsman. It had been provisionally taxed. The Taxing Clerk must therefore, even if sub silentio, have granted an extension of time pursuant to paragraph 6 of the Practice Directions. In agreement with the judge, I do not think that the Taxing Clerk had been asked to grant an extension of time within which to make a request for an order against the LSC. A request to extend the time period for lodging the bill of costs, which is neither copied to the LSC nor indicates any let alone a good reason for the delay, cannot in my judgment reasonably be regarded as a request to extend the time prescribed under paragraph 10(2) of the Costs Regulations, particularly bearing in mind the implications of such a request for the LSC, which at this stage of the proceedings is by definition a non-party. I would have come to the same conclusion even if the wording on the title page to the bill of costs could be regarded as written notice of a request for a costs order against the LSC. However, again in agreement with the judge, I do not think that it can be so regarded. It would be different if, for example, the covering letter had invited the House of Lords to treat it as such notice or if the documents accompanying the bill of costs had included a copy of a letter to be sent to the LSC inviting it to so treat it. But in the absence of any such explanation or of any service of the documents on the LSC itself, I do not see how the wording on the front of the bill of costs can be treated as without more constituting a notice such as is required by paragraph 10(3)(c) of the Costs Regulations. As the judge pointed out, the rubric says actually that the costs are to be paid by the Appellants, that is by the assisted persons. Whilst it says also that the Appellants are to pay out of the Community Legal Service Fund, it does not make clear that what is sought is a determination that it is just and equitable that liability should be imposed upon the LSC.
14. The Council must have accepted the provisional assessment and paid the prescribed Taxing Fee as requested for on 15 February 2007 the Clerk and Taxing Officer in the Judicial Office (not the Judicial Taxing Clerk with whom the Council had been in correspondence) issued a Certificate. It was in the following terms:-

"IN THE HOUSE OF LORDS

Leeds City Council (Respondents) v Price and others and others (FC) (Appellants)

I hereby certify that having examined and taxed the Bill of Costs, Charges and Expenses incurred by the respondents in respect of the said appeal, I have taxed the same in accordance with the Access to Justice Act 1999, at the following:

	£
Profit Costs (excluding the costs of taxation)	25116.80
VAT on Profit Costs	-
Counsel's fees	43800.00
VAT thereon	7665.00
Other disbursements (excluding taxing fee)	1701.08
VAT thereon	65.41
Costs of taxation allowed against Legal Aid Fund (including taxing fee)	5790.65
VAT thereon (excluding taxing fee)	nil
	£84128.94"

15. Mr Friston acknowledged before us that that Certificate had been irregularly obtained. It had certain been irregularly obtained if and insofar as the Council sought to rely upon it as imposing a liability upon the LSC. As is made clear by both the Regulations and the Practice Directions, the purpose of service upon the LSC is to enable it to be heard both as to the quantum of any costs recoverable by the non-funded party and on the question whether it is just and equitable in all the circumstances that the LSC should be directed to pay the whole or any part thereof. However the Certificate does not suggest that the LSC has been a party to the taxation of costs or played any part in it. It does not expressly certify or direct that any amount is payable by the LSC. Mr Friston suggested, first, that the Certificate should be construed in the light of the rubric on the bill of costs and second, that the reference to "costs of taxation allowed against Legal Aid Fund" made it clear that it was intended to be a Certificate "enforceable against the LSC". I have already given my reasons for thinking that reference to the bill of costs is unavailing, even if it is permissible or appropriate. The Certificate ought to speak for itself. As to the second point, it is a slim basis upon which to suggest that it was intended to impose a liability upon an unnamed third party which had played no part in the taxation. Moreover, paragraph 4.4 of the Practice Directions requires lodgement with the bill of costs of copies of any notice served upon the LSC. So there was on Mr Friston's hypothesis a double irregularity.
16. Accordingly I would agree with Mr Friston that if and insofar as the Certificate was either intended to impose liability upon the LSC or intended by the Council to be used for the purpose of seeking to enforce such a liability, it was irregularly obtained.
17. This irregularity was drawn to the Council's attention. On 2 April 2007 the Council sent to the LSC a letter which purported to enclose a copy of the "House of Lords Order dated 15 February 2007". The Council asked for payment of £84,138.94 as a matter of urgency. However the letter was in fact sent without any enclosure. The LSC replied on 27 April 2007 pointing out that the letter had lacked any enclosure and furthermore that it represented the first communication received by the LSC from the Council. The letter concluded "You do not appear to have followed the required formalities". There the matter lay for nineteen months until on 25 November 2008 the Council wrote again to the LSC, now enclosing a copy of the Certificate of 15 February 2007. The LSC was again asked for payment without further delay. The LSC responded on 4 December 2008 pointing out that receipt of the letter of 25 November, together with a copy of the Order dated 15 February 2007, represented the LSC's first sight of the Order. The LSC reiterated what had been said on 27 April 2007 to the effect that the Council had not complied with the correct or any formalities as far as the LSC was concerned. The LSC asserted that in such circumstances the "Bill of Costs" was therefore not valid against the LSC. The LSC indicated that its file remained closed. On 30 January 2009 the Council threatened to apply through the High Court to enforce the Order. On 18 March 2009 the LSC asserted that as the Council had not complied with the formalities set out in the Costs Regulations and the Cost Protection Regulations the Order was a nullity. On 1 May 2009 the Council wrote again to the LSC complaining that it had failed to explain why it considered that the Council had not complied with the "requisite formalities". It is plain that the writer of the letter either did not know what those formalities were, or knew nothing as to the circumstances in which the Certificate had been obtained. On 16 September 2009 the LSC set out in terms the formalities which had not been complied with as follows:-

"Service on the LSC at the same time as the request has been made to the Clerk to the Parliaments, in particular regulations 9-13 of the CLS (Costs) Regulations 2000.

The Order of 11.5.06 does not order the LSC to pay, but merely refers to the requirements set out in the regulations and in particular the role of the Clerk in that process.

The Certificate of 15.2.07 does not order the LSC to pay, but demonstrates that a provisional legal aid taxation of the bill has been completed. I do not understand how enforcement measures can be contemplated as a result."

18. On 24 September 2009 the Council wrote to the High Court at Leeds enclosing what it said was "a draft Order making an Order of the House of Lords an Order of the High Court". A request was made that the same should be placed before a judge of the High Court pursuant to Practice Direction 40B, paragraph 13(3) of the Civil Procedure Rules. Paragraph 13 of the Practice Direction as then in force provided as follows:-

"ORDER TO MAKE AN ORDER OF THE HOUSE OF LORDS AN ORDER OF THE HIGH COURT

13.1 Application may be made in accordance with Part 23 for an order to make an order of the House of Lords an order of the High Court. The application should be made to the procedural judge of the Division, District Registry or court in which the proceedings are taking place and may be made without notice unless the court directs otherwise.

13.2 The application must be supported by the following evidence:

(1) Details of the order which was the subject of the appeal to the House of Lords,

(2) Details of the order of the House of Lords, with a copy annexed, and

(3) A copy annexed of the certificate of the Clerk of Parliaments (sic) of the assessment of the costs of the appeal to the House of Lords in the sum of £ . . . .

13.3 The order to make an order of the House of Lords an order of the High Court should be in Form No PF68."

The application was made without notice and enclosed only the Order of the House of Lords made on 11 May 2006 and the Certificate dated 15 February 2007. In particular, the Council did not draw to the attention of the court the LSC's repeated and by now recently substantiated contention that neither the Order nor the Certificate imposed liability upon it and that there had been a failure to comply with the Regulations so far as concerned service on the LSC.

19. The application was placed before Judge Behrens as one of many paper applications. He made the Order as asked on 16 October 2009. I must set it out in full.

"PF 68

Order making an Order of the House of Lords an Order of the High Court of Justice (PD Part 40B para. 13.3)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

LEEDS District Registry

Claim no

Before His Honour Judge Behrens [sitting in Private]

Claimant Leeds City Council

Defendant Price and others and others FC

An application was made by letter dated 22 September by the Claimant (Respondent)

The Master read the written evidence filed

IT IS ORDERED that:

1. the Order made on 11 May 2006 by the Lords Spiritual and Temporal in the Court of parliament of Her Majesty the Queen assembled, upon the petition and appeal of the Respondent that the Appellants do pay or cause to be paid to the Respondent their costs in this house, the amount of thereof if any to be paid by the Appellant and to be paid out of the Community Legal Service Fund to be certified by the Clerk [of] the Parliament in accordance with Section 11 of the Access to Justice Act 1999; and it is further Ordered, That the costs of the Appellants in this house be taxed in accordance with the Access to Justice Act 1999' and it is further Ordered, That there be no order for costs in her Majesty's Court of Appeal and that, so far as regards costs of the High Court of Justice Queen's Bench Division, Leeds District Registry, the Order of His Honour Judge Bush of 25 October 2004 be affirmed. The Orders are made an Order of the High Court.

2. the costs of this application are summarily assessed in the sum of £84,139.94 and to be paid by the Legal Services Commission, SCU and MPS Unit.

Dated"

20. The Order is in fact a nonsense as Judge Behrens somewhat ruefully acknowledged in his judgment under appeal, given on the application by the LSC to set the Order aside. The Order made by the House of Lords on May 2006 imposed no liability upon the LSC. It was simply, in the terminology of Gunn, a stage 1 order under s.11 of the 1999 Act. It paved the way for a request to be made for costs to be paid by the LSC. So paragraph 1 of the Order of 16 October 2009 imposes no liability upon the LSC. It is effectively meaningless. Paragraph 2 assessed the costs of the ex parte application made by the Council on 24 September 2009 at £84,139.84 and directed that they be paid by the LSC. That was plainly a mistake. The costs of that application were very modest, probably less than £200 as was common ground before the judge when the matter came back before him. However since only the order of 11 May 2006 was sought to be enforced, and since that imposed no liability upon the LSC, there was no basis upon which the LSC could have been required to pay the costs of the ex parte application, whatever they were.
21. So the Order of the High Court dated 16 October 2009 had to be set aside. Judge Behrens duly set it aside. He also observed that it was a serious dereliction of duty by the Council to fail to draw to his attention the dispute as to the enforceability of the Certificate of 15 February 2007, and he would have set aside his own Order on this ground too. I agree with the judge that the Council should have drawn to his attention the points which the LSC was making, since the Council was plainly intending to seek enforcement of the Certificate. But there is again the irony that the Order placed before the court failed to refer to the Certificate, or even to the circumstance that any process of taxation had taken place in the House of Lords. Even the sum of £84,139.94 was said to have been the result of a summary assessment of costs. Strictly therefore the non-disclosure was irrelevant to the Order actually sought by the Council. However this should not detract from the criticism of the Council. It was plainly unaware that what it had placed before the court was in fact a nonsense, and it plainly intended to seek an enforceable order against the LSC in respect of the taxed costs. The judge thought in retrospect that perhaps he should have looked at the draft order more closely before approving it. However, as the judge pointed out, had he been shown the letter from the LSC of 16 September 2009, sent to the Council only eight days before it made its application, he would doubtless have declined to deal with the matter without notice and directed an inter partes hearing as paragraph 13.1 of Practice Direction 40B envisages may be appropriate.
22. The judge observed at paragraph 36(4) of his judgment that had he been asked to enforce the Certificate of 15 February 2007 as an Order of the High Court made against the LSC he would have refused to do so as (i) that Certificate was not an order for payment by the LSC as envisaged by paragraph 5(2) of the Cost Protection Regulations and (ii) if it was, it had been irregularly obtained as the LSC had not been served with any request for an order to be made against it and knew nothing about the taxation proceedings in the House of Lords. All of Mr Friston's grounds of appeal relate to these observations of the judge, which as he recognised when refusing leave to appeal were unnecessary to his decision.
23. Mr Friston complains that the LSC did not before the judge itself rely upon the manifest absurdity of the Order which the Council had induced the court to make and suggests that the Council had been unfairly denied an opportunity to make an oral application to correct the error made when applying to the court on 24 September 2009. I do not accept this analysis but I shall deal briefly with the substance of Mr Friston's argument lest the Council should be encouraged to make a further application to the High Court.
24. In essence Mr Friston's submission is that the Certificate of 15 February 2007 should either have been enforced by the High Court or, if the High Court thought that there was some lack of clarity in the Certificate, it should merely have stayed the application before it pending clarification of the matter by the House of Lords. If the LSC had any complaint about the procedures which had led to the issue of the Certificate, it should have taken it up with the House of Lords when it received the Certificate. That of course I interpose was not until the receipt of the Council's letter of 25 November 2008. Any application for leave to present a petition of appeal against a taxation in the House of Lords was required to be made within fourteen days after the decision of the Taxing Officer or such longer period as may be fixed by him – see Practice Directions paragraph 17.3. Had an application been made by the LSC when it received the Certificate, submitted Mr Friston, the Council would have agreed that the matter must go back to the Taxing Officer in the House of Lords. The thrust of Mr Friston's submission was that the onus lay on the LSC to seek to rectify the procedural failings of the Council. The LSC could, he submitted, "have put it right".
25. I regard these arguments as unrealistic. For the reasons I have already given they in any event founder at the first hurdle since I do not regard the Certificate of 15 February 2007 as either on its face or by necessary implication imposing a liability upon the LSC. However, even if that hurdle could be overcome, I do not consider that the High Court was obliged to enforce against the LSC an Order that had been irregularly obtained in this manner. Paragraph 5(3) of the Cost Protection Regulations provides that an order under paragraph 5(2) for payment by the LSC may only be made where the conditions in sub-paragraphs (a), (b), (c) and (d) are satisfied. Condition (b) had not been satisfied in that (i) there was no request under paragraph 10(2) of the Costs Regulations, (ii) a fortiori there was no such request made within three months after the s.11 costs order, (iii) no written notice had been given to the LSC that an order for payment was sought against it and (iv) no documents of any description relating to the taxation had been served upon the LSC. Paragraph 7 of the Cost Protection Regulations provides that no order shall be made against the LSC except in accordance with the Regulations. No doubt the High Court would always hesitate long before declining to enforce an apparently regular order of the House of Lords or, now, the Supreme Court, and it may be difficult to think of circumstances in which it would or could so decline. But the hypothesis here is of the court being invited to enforce an order which is known to have been irregularly obtained in circumstances where the enabling Regulations expressly provide that compliance therewith is a prerequisite of the making of a valid order. Moreover the irregularity here consists, in part, of a failure to observe one of the basic principles of natural justice, audi alteram partem. In such circumstances the terms of Practice Direction 40B do not in my view compel the High Court to grant enforcement, leaving it to the party affected to take up the matter as best he can with the House of Lords. It is implicit in the circumstance that the court may decline to deal with an application without notice that it has a discretion to exercise. I do not consider that the decision of Megaw J in Cope v United Dairies (London) (1968) Costs LJ (Core vol) 23 is of any assistance in determining the nature of the jurisdiction of the High Court in these circumstances. I would agree with Mr Friston to this extent, that in these unusual circumstances the court might think it appropriate simply to adjourn the process of making the relevant order an order of the High Court. This is largely a matter of semantics. It cannot assist the Council here. If it is drawn to the attention of the court that it has inadvertently made an order of this sort an order of the court, it is again a matter of semantics whether a stay of execution is imposed or the order is simply set aside. If steps are later taken to regularise the order sought to be enforced I can see no bar to a fresh application to enforce the new order. Whether the House of Lords or the Supreme Court could or would now regularise the position in this case is not for us to decide. No reason, let alone a good reason for the failure to make a request under paragraph 10(2) of the Costs Regulations having been put forward in the nearly five and a half years which have elapsed since the expiry of the time limited for so doing, the Council would seem to face an uphill struggle.
26. I am untroubled by Mr Friston's suggestion that to permit the enforcing court to enquire into the validity of the costs order introduces a further right of appeal. The hypothesis upon which we are being asked to proceed is one where it is accepted that the order sought to be enforced, insofar as it is an order imposing liability upon the party against whom it is proposed to enforce it, has been irregularly obtained and, I would add, obtained by irregularity of a high order. Such circumstances must be very rare. They do not require any enquiry by the enforcing court.
27. A final point upon which we did not hear full argument is that the jurisdiction to make a relevant order against the LSC under both the Costs Regulations and the Cost Protection Regulations is, by paragraph 10(10)(a) of the former and paragraph 5(3A)(a) of the latter conferred upon the Clerk of the Parliaments, referred to in the Regulations as the Clerk to the Parliaments. The Order made by the House of Lords on 11 May 2006 directed that the Clerk of the Parliaments should certify the amount, if any, of the costs of the non-funded party which should be paid by the LSC. The Certificate of 15 February 2007 is made by a "Clerk and Taxing Officer" in the Judicial Office of the House of Lords. It may be that the powers of the Clerk of the Parliaments are to be regarded as having been delegated by reason of the House of Lords Practice Directions to the Clerk and Taxing Officer in the Judicial Office. Had this point stood alone I would for my part have sought clarification before sanctioning enforcement of the Certificate. The point is not an arid one since it goes to the identity of the judicial officer who is to determine that it is just and equitable in the circumstances that provision for the costs incurred by the non-funded party should be made out of public funds.
28. For all these reasons, which as explained go beyond what is actually required for the disposal of this appeal, I would dismiss the appeal. The judge was right to set aside the Order of the High Court which had been made on 16 October 2009 on an application without notice to the party against whom it was sought to be made.

Dame Janet Smith :

29. I agree.

Lord Justice Aikens :

30. I also agree.