England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr David Foxton QC (sitting as a Deputy High Court Judge)
[2016] EWHC 1828 (Ch)

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/01/2018

Lord Justice Newey:

1. The issue raised by this appeal is whether a litigant in person in whose favour a costs order is made can recover for work undertaken by a foreign lawyer.
2. The appellant, Mr Richard Campbell, was represented in these proceedings by a London law firm, Cooke, Young & Keidan, until May 2016. He then became a litigant in person, but he has been assisted in matters relating to the litigation by Dickinson Gleeson, a firm of Jersey advocates that has been acting for him in a related case in Jersey. As regards the present proceedings, Dickinson Gleeson have, for example, helped the appellant with the drafting of correspondence and witness statements and by reviewing and advising on Scott schedules and disclosed documents. Most of the relevant work was undertaken by one partner in Dickinson Gleeson, Mr James Dickinson. Mr Dickinson qualified as a solicitor in this jurisdiction in 1997, but he moved to Jersey in 1999, became an Advocate of the Royal Court of Jersey in 2004 and, I gather, ceased to be on the roll of solicitors in England and Wales in 2014. I understand that he has now had his name restored to the roll and been granted a practising certificate, but he was not entitled to practise as a solicitor in England and Wales during the period relevant to this appeal.
3. The costs of litigants in person are addressed in CPR 46.5. So far as material, that provides:

"(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.

(2) The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.

(3) The litigant in person shall be allowed—

(a) costs for the same categories of—

(i) work; and

(ii) disbursements,

which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person's behalf;

(b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and

(c) the costs of obtaining expert assistance in assessing the costs claim.

(4) The amount of costs to be allowed to the litigant in person for any item of work claimed will be—

(a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or

(b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46."

(Emphasis added.)

4. The term "legal representative", which features in CPR 46.5(2) and (3)(a), is defined in CPR 2.3(1) to mean a:

"(a) barrister;

(b) solicitor;

(c) solicitor's employee;

(d) manager of a body recognised under section 9 of the Administration of Justice Act 1985; or

(e) person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act),

who has been instructed to act for a party in relation to proceedings".

5. The focus of the present appeal is on CPR 46.5(3)(b). It is the appellant's case that this extends to payments made for the services of a foreign lawyer. Mr David Foxton QC, sitting as a Deputy High Court Judge, decided otherwise, concluding (in paragraph 17 of his judgment) that "services provided by a lawyer qualified in another jurisdiction do not constitute 'legal services' for the purposes of CPR 46.5(3)(b)". The appellant, however, challenges that view before this Court.
6. We were referred to two decisions in which the interpretation of what used to be CPR 48.6(3) (which has now become CPR 46.5(3)) was considered. In the earlier of the cases, United Building and Plumbing Contractors v Kajla [2002] EWCA Civ 628, [2002] CP Rep 53, the successful claimant had been assisted by the director of a debt collection company, a Mr Whiteland. The Court of Appeal held that there had been no jurisdiction to order the defendant to pay any of Mr Whiteland's fees. In the course of his judgment, Tuckey LJ, with whom Rix LJ agreed, said this about what was then CPR 48.6(3)(b) (at paragraph 14):

"Sub-paragraph (b) relates to 'legal services', which are not defined by the rules. The notes in the White Book suggest that this sub-paragraph was intended to cover partial legal services; in other words some legal advice or assistance short of full representation. But I think the sub-paragraph is referring to services which are 'legal'; that is to say, services provided by or under the supervision of a lawyer. On the face of it, Mr Whiteland was not providing such services. Therefore the judge had no jurisdiction to award the respondent any part of Mr Whiteland's fees."

7. The other authority, Agassi v Robinson (Inspector of Taxes) (No 2) [2005] EWCA Civ 1507, [2006] 1 WLR 2126, concerned fees paid to Tenon Media, experts in tax law whom Mr André Agassi, the well-known tennis player, had used in place of a firm of solicitors. One of the issues before the Court of Appeal was whether the fees could be recovered as a "disbursement" within CPR 48.6(3)(a)(ii) (now CPR 46.5(3)(a)(ii)). The Court decided that they could not. Dyson LJ, with whom Brooke and Carnwath LJJ agreed, explained that a "clear distinction has always been recognised between disbursements made and work done by a legal representative" (see paragraph 74) and said (in paragraph 73):

"The rule contemplates allowing as costs only those categories of disbursements which would normally have been made by a legal representative. If the expenditure is for work which a legal representative would normally have done himself, it is not a disbursement within the language of CPR r 48.6(3)(a)(ii)."

It followed that Mr Agassi was "not entitled to recover costs as a disbursement in respect of work done by Tenon which would normally have been done by a solicitor who had been instructed to conduct the appeal" (paragraph 75). Further, the Court took the view that "none of the items [of work at issue] are legal services which fall within CPR r 48.6(3)(b)" (paragraph 79), the Court considering that the reasoning in the United Building and Plumbing Contractors case was both binding on it and correct (paragraph 72).

8. In a postscript, Dyson LJ observed that members of organisations such as the Chartered Institute of Taxation "have specialist expertise in the field of tax law, often far exceeding that of solicitors" (paragraph 80). He went on:

"81 At first sight, it might seem regrettable that Mr Agassi should not be entitled to recover all of Tenon's fees, provided that they are reasonable and proportionate. But so to hold would undermine the delicate balance struck by CPR r 48.6(3) and conflict with the established understanding of what is allowable as a disbursement. Furthermore, … if Mr Agassi is entitled to recover Tenon's reasonable and proportionate fees under CPR r 48.6, so too would a litigant in person be able to recover the reasonable and proportionate fees of any person who provides general assistance in litigation. In view of the restricted ambit of section 20(1) of the 1974 Act [i.e. the Solicitors Act 1974] and of the definition of the 'right to conduct litigation' in the 1990 Act [i.e. the Courts and Legal Services Act 1990], there would be ample scope for any unqualified and unregulated person to provide general assistance in litigation, secure in the knowledge that the litigant in person, if successful, would recover the cost of that assistance as a disbursement. It may be said that there is nothing wrong with that, since the court can exercise control by limiting recovery to what is reasonable and proportionate. But, important though this mechanism of control undoubtedly is, it would at best be an imperfect tool for controlling the activities of unskilled and unregulated persons, who are immune from the specific sanctions inherent in the wasted costs jurisdiction of the court. In any event, it should not be overlooked that most cases settle out of court.

82 The obvious solution to the problems raised by this case is for an organisation such as the Chartered Institute of Taxation to become an 'authorised body' within the meaning of section 28(5) of the 1990 Act, and for those members who wish to conduct litigation to become authorised litigators and thereby 'legal representatives' within the meaning of CPR r 2.3(1). Section 28 would permit the institute to limit its application to a right to conduct a particular category of litigation, such as litigation falling within the scope of the permission granted by the Bar Council under the Licensed Access scheme. The reasonable and proportionate fees of any such litigator would be recoverable by a litigant in person as legal services under CPR r 48.6(3)(b)."

9. Mr John Machell QC, who appeared before us for the appellant, pointed out that CPR 46.5(3)(b) does not state that it applies only to services provided by lawyers qualified in England and Wales. While CPR 46.5(2) and 46.5(3)(a) use the term "legal representative", which refers to someone with a qualification in this jurisdiction, CPR 46.5(3)(b) does not, from which it is to be inferred (Mr Machell submitted) that the intention was that CPR 46.5(3)(b) could apply to legal services supplied by someone other than a "legal representative". What matters, Mr Machell maintained, is that the relevant services are rendered by a lawyer, not where the lawyer is qualified: the dividing line is between services provided by a lawyer (the costs of which are recoverable) and services provided by other professionals (the costs of which are not). A foreign lawyer, Mr Machell said, would need to be qualified and regulated as such in his home jurisdiction. The fact, therefore, that such a lawyer might not be amenable to regulation in this country in the same way as (say) a solicitor is not important or, at least, does not matter enough to outweigh the "strong policy reasons that favour the adoption of a broader, rather than a narrower, construction of CPR 46.5(3)(b)". In this connection, Mr Machell suggested that the rules should be read in a way that encourages, rather than discourages, litigants in person from obtaining legal assistance and that, from a litigant's point of view, there may be a very significant cost saving if services can be obtained from lawyers in a lower cost jurisdiction. Mr Machell noted, too, that, in an appropriate case, the Court could make a non-party costs order against a foreign lawyer pursuant to section 51 of the Senior Courts Act 1981.
10. As, however, was pointed out by Mr Andrew Twigger QC, who appeared for the respondent with Miss Narinder Jhittay, the construction of CPR 46.5(3)(b) for which Mr Machell contended would have surprising and unsatisfactory implications. It is apparent from the United Building and Plumbing Contractors and Agassi cases that sums paid to someone familiar with the relevant law and procedure of this jurisdiction will not be recoverable under CPR 46.5(3)(b) unless the individual was legally qualified. The fact that a tax adviser may have "specialist expertise" "far exceeding that of solicitors" will not avail a litigant in person, and it was common ground between the parties that a professor of law at a leading English university will be in the same position if he or she has not acquired a professional qualification. If, though, Mr Machell's argument were correct, a person with a legal qualification from anywhere in the world, who might come from a jurisdiction with quite different law and procedure from this one, who might have no knowledge at all of our law and procedure, who would not be subject to the same regulation as a lawyer practising in England and Wales and whose own jurisdiction could not be guaranteed to provide any equivalent protection, could supply "legal services" within the meaning of CPR 46.5(3)(b), with the result that a litigant in person could potentially recover the cost from another party.
11. In my view, Mr Machell's submissions are not well-founded. Although CPR 46.5(3)(b) does not state so expressly, it can be seen from the United Building and Plumbing Contractors and Agassi cases that "legal services" must be "provided by or under supervision of a lawyer". It is also, I think, implicit in the provision that the lawyer must be someone who can be expected to be competent to supply services "relating to the conduct of the proceedings", which will be proceedings in this jurisdiction. A lawyer qualified in England and Wales will be such a person, but a foreign lawyer will not. As the Judge said (in paragraph 17(ii) of his judgment), Dickinson Gleeson's position "so far as English proceedings are concerned is that of lay persons", and most foreign lawyers will know much less about the legal system of England and Wales than Dickinson Gleeson. In short, a foreign lawyer lacking a qualification in this jurisdiction cannot be regarded as a "lawyer" or, hence, providing "legal services" for the purposes of CPR 46.5(3)(b) as what matters in that context is expertise in the law and procedure governing the relevant proceedings, viz. that of England and Wales.
12. Contrary to Mr Machell's contentions, that conclusion appears to me to make sense in public policy terms. I agree with Mr Twigger's submission that the "true policy consideration in the interpretation of these rules is that those who provide advice and assistance in connection with litigation in this jurisdiction should be properly qualified, regulated and insured in this jurisdiction". The point derives support from the Agassi case, in which Dyson LJ expressed concern about the possibility of an "unqualified and unregulated person" assisting with litigation and considered that the Court's ability to limit recovery to what is reasonable and proportionate "would at best be an imperfect tool for controlling the activities of unskilled and unregulated persons" (see paragraph 81). Nor does reference to Lord Woolf's "Access to Justice Final Report" (published in 1996) help Mr Machell. Lord Woolf spoke (in paragraph 45 of chapter 7) of the desirability of "unbundling", in other words of "arrangements whereby litigants could undertake much of the preparation of their case but with access to legal advice and representation as necessary". That view is reflected in CPR 46.5(3)(b), which allows a litigant in person to recover the cost of obtaining assistance (including, but not limited to, advice) from a lawyer. There is, however, no reason to suppose that Lord Woolf had in mind the provision of assistance by a foreign lawyer.
13. In all the circumstances, the Judge was, in my view, correct. I would dismiss the appeal.

Lord Justice Longmore:
 


14. I agree.