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England and Wales High Court (Senior Courts Costs Office) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Poccia v Toussiant [2004] EWHC 90016 (Costs) (13 July 2004)
URL: http://www.bailii.org/ew/cases/EWHC/Costs/2004/90016.html
Cite as: [2004] EWHC 90016 (Costs)
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SCCO Ref: 0309182 |
SUPREME COURT COSTS OFFICE
London, EC4A 1DQ |
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B e f o r e :
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| Fabio Poccia (by his Litigation Friend Giovanni Lombardo) |
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| - and - |
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| Steven Toussiant |
____________________
Mr Power (instructed by Budd Martin Burrett) for the Defendant
Hearing dates : 27 April
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Crown Copyright ©
- On 3 July 1997 the Claimant, a young Italian, suffered devastating injuries as a consequence of an accident while riding as a pillion passenger on a motorcycle in Kilburn High Road. He was later taken to Italy where he was cared for by his elderly parents. The father obtained the right to conduct proceedings in Italy. The Claimant was a patient under the Mental Health Act.
- Mr Lombardo is an Italian avvocato who has acted as the Claimants' litigation friend in the English proceedings. He has offices in Throgmorton Street, London, EC2. It eventually emerged towards the end of the hearing that he was admitted to the Roll of Solicitors and issued with a practising certificate on 2 February 2004. He claimed £250 per hour. Other members of his firm charged £225 or £165 per hour. The costs of the Claimant's solicitor were £140 per hour, £130 per hour and £112.50 per hour.
- The Defendant challenged the costs claimed by the litigation friend (some £53,000) on the basis that they were not costs of the action and in any event were excessive. The Claimant rejected the point on the following basis:
- At the detailed assessment on 19 February 2004 Mr Yeung produced three letters, namely:
- Both Counsel accepted that there was no reported case on the entitlement of a litigation friend to be remunerated. The issue of the entitlement of a litigation friend to recover costs was adjourned for skeleton arguments to be served and filed.
- How Mr Lombardo became involved is a mystery. The first entry in his claim for costs is dated 14 July 1997 and reads as follows:
- Originally Jonathan Clarke, solicitors, acted for the Claimant. The legal aid certificate was issued to them on 5 March 1998. Mr Clarke does not appear to have progressed the action significantly. On 16 December 1998 the legal aid certificate was transferred to Ouvry Goodman whose offices are in Sutton, Surrey. On 14 June 2000 Mr Lombardo signed the notice of acting as litigation friend. The writ was issued on the same day.
- CPR 21.4 reads as follows:
- 4(3) If nobody has been appointed by the court or, in the case of a patient, authorised under Part VII, a person may act as a litigation friend if he –
- 5(2) A person authorised under Part VII of the Mental Health Act 1983 must file an official copy of the order or other document which constitutes his authorisation to act.
- The Practice Direction to Part 21 reads as follows:
- 1 It is the duty of a litigation friend fairly and competently to conduct proceedings on behalf of a child or patient. He must have no interest in the proceedings adverse to that of the child or patient and all steps and decisions he takes in the proceedings must be taken for the benefit of the child or patient.
- 2 A person may become a litigation friend:
- 4 The evidence in support must satisfy the court that the proposed litigation friend:
- Mr Yeung submitted, by reference to CPR 21.4(3), that Mr Lombardo did not have an interest adverse to the Claimant patient (within the meaning of the rule) because he was retained by or on his behalf under a transaction at arms length. There was no suggestion that the litigation friend had acted in a manner detrimental to the Claimant's case, or had done anything to prolong the litigation. In the absence of any authority (either way) on the principles as to a litigation friend's entitlement to receive payment, he invited me to hold that the litigation friend was entitled to receive payment for work done on behalf of the Claimant. Mr Yeung relied upon various matters which amounted to special circumstances, namely:
- Mr Yeung submitted that in the absence of this litigation friend the services of an Italian lawyer and/or translator would have had to be engaged. There would also have been costly visits by the English solicitor to Italy and this would have involved the services of a translator. If an Italian lawyer in England had been engaged the same costs would have been incurred. It would have been necessary to find an Italian lawyer or an Italian speaking lawyer with a legal aid franchise. He also submitted that it had not been necessary to provide information about Mr Lombardo's fees to the Legal Aid Board or prior authority. That step was not essential to the recovery of fees inter partes. The Claimant had succeeded on the liability issue and had been awarded his costs (see Regulation 63 Civil Legal Aid (General) Regulations 1989). If the fees were not recoverable, that would be a matter between the Legal Services Commission and the Claimant. He accepted that no estimate for the costs of Mr Lombardo had been included in the allocation questionnaire or the listing questionnaire.
- Mr Yeung accepted that the charges by Mr Lombardo should not exceed those of Ouvry Goodman. At times Mr Lombardo was acting in effect as agents of Ouvry Goodman. On these occasions he conceded that there could not be any double recovery. Mr Lombardo did not have a legal aid franchise in 1997. This was not a case where there was any agreement where the litigation friend would recover a percentage of the damages.
- Mr Power submitted that if Mr Lombardo considered he was entitled to recover costs, he must show that there was an enforceable contract between himself and the Claimant. His association with the Claimant and his family appeared to pre-date the association with Jonathan Clarke & Co and certainly pre-dated the association with Ouvry Goodman & Co. Mr Lombardo started to take an active part from 14 July 1997 less than a fortnight after the accident. It appeared that Mr Lombardo referred the case to Ouvry Goodman.
- Mr Power made various points concerning the relationship between Mr Lombardo and the Claimant:
- Mr Power then developed his submission that the nature of a litigation friend was an altruistic benefactor to an incapable party to litigation. There was no evidence of agreement on hourly rates, so Mr Lombardo would only be entitled to recover on a quantum meruit basis. However, since there was no market for the "services" of a litigation friend, even on a quantum meruit basis, it was not reasonable to pay a litigation friend. There were thousands of cases where the litigation friend had not been paid. He also submitted that Mr Lombardo had to demonstrate for the purposes of the certificate that he had given under CPR 21.4 and 21.5, that he had no interest adverse to that of the Claimant for acting as litigation friend. This could not be done. He would be obliged to inform the Claimant that as a patient he could not enter into a binding contract and that he, Mr Lombardo, was not entitled to be paid for his services. That view did not conflict with the position where there was a fiduciary relationship, for example a trustee may be paid. Furthermore a litigation friend stepped into the shoes of a party who, whether claimant or defendant, was not entitled to be paid to pursue or defend an action. In the present situation there was no reason why one of the Claimant's parents could not have been appointed litigation friend. He submitted that Mr Yeung's point that the parents were not highly educated did not advance the Claimant's case for recovery of Mr Lombardo's fees. Mr Lombardo had performed what a lawyer would undertake and had become in effect a translator. At the earlier hearing it had emerged that Mr Lombardo claimed the benefit of a contingency fee agreement (see paragraph 19 below). That created an interest conflict between him and the Claimant's interest. On that ground alone Mr Lombardo rendered himself unsuitable to act as litigation friend. He was also obliged to inform the Claimant that the contingent fee arrangement was champertous and the breach of Regulation 8 of the Solicitors Practice Rules 1999 and unenforceable. The conflict of interest was also evident from the fact that the hearing on 19 February 2004 had been adjourned solely for Mr Lombardo's benefit and not for that of the Claimant. The same applied to the present hearing. The Claimant risked bearing those costs.
- Mr Power also submitted that, in the alternative, if there was a contract, it pre-dated the grant of legal aid on 5 March 1988. Mr Yeung had submitted that the lack of legal aid authority was not relevant to the recovery of costs inter partes. Mr Power submitted that was incorrect. The solicitor and counsel were in reality instructed by the Legal Aid Board/Legal Services Commission because payment was only made by the Legal Aid Board/Legal Services Commission with its authority. Damages were paid to the Legal Aid Board who then conducted a balancing exercise. Under Regulation 64 of the Civil Legal Aid (General) Regulations 1989 it was unlawful to receive funds other than from the Fund. That Regulation reads as follows:
- Accordingly an effect of the grant of legal aid on 5 March 1998 was to terminate any contract with Mr Lombardo. Any contract which ran alongside a legal aid certificate was unauthorised and illegal. Mr Power also submitted that, under Regulation 61(2)(d) application should be made to the Legal Aid Board/ Legal Services Commission where the solicitor was "performing an act which is either unusual in its nature or involves unusually large expenditure". The Claimant had admitted that no step had been taken in relation to Mr Lombardo's fees. If application had been made he submitted it would have been refused. The Claimant was only entitled to the services of one solicitor, not two solicitors. He accepted that failure to make such an application was not a complete bar. However the power to allow costs for which authority had not been obtained should only be exercised in exceptional circumstances and in clear and obvious cases and where there was a good reason why an application to the Legal Aid Board for authority was not made. Mr Lombardo had been performing functions usually performed by a solicitor on the record, for example interviewing witnesses. There had been no reference to Mr Lombardo's fees in the allocation questionnaire or in the listing questionnaire.
- Mr Power also relied upon rule 8 of the Solicitors Practice Rules 1999 which reads as follows:
- Mr Power also submitted that Mr Lombardo could not succeed in a claim for costs under the guise of the Factortame or the Eurasian Dream (No.2) judgments on the basis that he was performing the functions of solicitor or counsel because he was not permitted to have a financial interest in the outcome of the litigation. He had been intimately concerned in the preparation of evidence and how it was to be presented. Mr Power relied upon paragraph 60 of the Factortame judgment in which Lord Phillips, MR, quoted from the judgment of Buckley LJ in Wallersteiner v Moir (No.2) [1975] QB 373 at page 401. It reads as follows:
- Mr Power submitted that Mr Lombardo fell within the group of people described by Lord Phillips who should not be a party to a contingent fee agreement concerning litigation. It was inconceivable that Mr Lombardo had not given legal advice to the Claimant's parents.
- When it finally emerged that Mr Lombardo had only been admitted as a solicitor and granted a practising certificate on 2 February 2004, Mr Power also submitted that if Mr Lombardo had signed any document as a solicitor prior to that date there would have been a breach of the Solicitors Act in that he would have purported to act as a solicitor which was a criminal offence. Any contract to act as a solicitor would have been unlawful. Under Regulation 62(2) there would have been no consideration. That was a further reason why discretion should not be exercised. Mr Yeung understood that Mr Lombardo had not signed as a solicitor prior to 2 February 2004.
- I accept Mr Yeung's submission that Mr Lombardo has given considerable assistance to Mr Baker QC, Mr Richard Greenwood M.D F.R.C.S., Susan Edwards F.C.S.P. and to himself as well as to the solicitors on the record Ouvry Goodman. He has also submitted that, as the litigation friend, Mr Lombardo did not have an interest adverse to the Claimant's interest and had not acted in a manner detrimental to the case or in a manner which prolonged the action. Indeed I accept his participation improved the process of communication between the English team and the Italian Claimant and his parents. He also relied upon the several issues set out in paragraph 10 above. He submitted that if Mr Lombardo had not been involved it would have been necessary to involve translators and/or an Italian lawyer. Mr Yeung was unable to explain the basis on which Mr Lombardo had been retained originally; how Jonathan Clarke & Co dealt with Mr Lombardo and the basis on which Ouvry Goodman understood Mr Lombardo to be involved. It was clear that Mr Lombardo had become involved within a fortnight of the accident and had carried out many activities that would normally be undertaken by solicitors. In the absence of any case on the issue of the fees of a litigation friend, he submitted that Mr Lombardo was entitled to recover his costs.
- Mr Power has submitted that there could not be any binding retainer between Mr Lombardo and the Claimant because Mr Lombardo was fully conversant with the state of health and lack of mental capacity of the Claimant. Furthermore the order of the Italian court under which the Claimant's parents represented him initially had never been registered in England. No order had been obtained in England under the Mental Health Act. There was therefore no authority within the jurisdiction for Mr Lombardo to represent the Claimant on a fee paying basis. I accept and agree with that conclusion for the reasons advanced by Mr Power. Mr Yeung has not advanced any submission that remotely brings Mr Lombardo anywhere near to a contractual relationship with the Claimant.
- Mr Power also noted that no legal aid authority had been obtained to retain Mr Lombardo and no provision for his fees had been included in any allocation or listing questionnaires. A party to litigation could only have one solicitor acting for him and, here, the retained solicitor who was in receipt of the legal aid certificate was the partner with Ouvry Goodman. Mr Power also picked up the point that at the earlier hearing it had emerged that Mr Lombardo may have been acting under a contingency fee arrangement and would only be paid if the case succeeded. Such an agreement was unlawful and unenforceable under Section 58 of the Courts and Legal Services Act 1990. There would also be a conflict between Mr Lombardo and the Claimant if his fees were dependent upon the outcome of the litigation (see the judgment of Lord Phillips at paragraph 20 above).
- CPR 21.4 and the Practice Direction are both silent as to the remuneration of a litigation friend. It requires the litigation friend to have no interest adverse to that of the patient and to be someone who can fairly and competently conduct proceedings on his behalf. Mr Lombardo was apparently conversant with court proceedings in Italy and the provision for people under a disability. Subject to clarifying whether there was some contingency fee arrangement, Mr Lombardo was a suitable litigation friend. He was bi-lingual and understood the appropriate procedures in Italy. His assistance has been recognised by, and confirmed by, the three letters produced by Mr Yeung. In my judgment Mr Lombardo was a proper person to be appointed as the litigation friend.
- Mr Lombardo was not admitted as a solicitor until 2 February 2004. His practising certificate was issued on that date. The Claimant's solicitors never received authorisation from the Legal Aid Board for his involvement and details of his fees were never included in any allocation or listing questionnaire. Prior authority is not required where costs are recovered between the parties and prior authority has not been obtained (see Regulation 63(4) Civil Legal Aid (General) Regulations 1989). Under Regulation 61 prior authority may be sought for:
- Mr Lombardo was not the solicitor on the record of the court nor the solicitor to whom the legal aid certificate had been transferred. Up to 2 February 2004 Mr Lombardo was not entitled to conduct litigation since he was not a solicitor admitted to the Roll of Solicitors nor was he in possession of a practising certificate. If he had been retained his retainer would have been terminated on the grant of legal aid on 5 March 1998. He was not in a position to enter into a binding retainer with the Claimant because the Claimant did not have the capacity to contract. The Italian order was not registered in the UK and there was no authority in the jurisdiction for Mr Lombardo to take instruction from the parents. There was no order under the Mental Health Act.
- For the reasons which I have set out above there is no basis on which Mr Lombardo can be entitled to recover the costs from the Defendants since it would infringe the indemnity principle.
- If I am wrong in my conclusions, I must consider whether there is any other basis on which Mr Lombardo might be entitled to recover his costs. Mr Power has submitted that a litigation friend is not remunerated for his involvement. He submits there are literally thousands of people (relations or friends) who give up time to help a party to litigate without charge. I understand that sometimes such help is performed at a loss, for example where a premium has been paid for after the event insurance in a claim and the full amount is not recovered from the paying party in costs only proceedings or full proceedings. The Rule and Practice Direction is silent on costs. By contrast CPR 48.6 and CPD 52, relating to the costs of a litigant in person, set out what is recoverable. Provision is made for a claim for financial loss and for the costs of obtaining expert assistance in assessing the costs claimed. The experts include a barrister, a solicitor, a Fellow of the Institute of Legal Executives and a Fellow of the Association of Law Costs Draftsmen. Provision is also made for the hourly rate (currently £9.25 per hour) recoverable under the Litigants in Person (Costs and Expenses) Act 1975 and the Litigant in Person (Costs and Expenses) Order 1975. It is not necessary to set out the full details of the costs recoverable by a litigant in person.
- I have reached the conclusion that there is no provision under CPR 21.4 or the Practice Direction for a litigation friend to recover costs. My attention has not been directed to any provision in the CPR relating to the assessment of costs which makes provision for the recovery of costs by a litigation friend. I accept the invaluable help provided by Mr Lombardo. However I must disallow all his costs since they are not recoverable.
- I add this rider to my judgment. There is on the website of the Law Society a list of just over two pages of Italian speaking lawyers in London. The appropriate step in the circumstances of this case would have been for the sensible solicitor to advise the client or his representative to consult that list and to identify an Italian speaking solicitor who was able to undertake the case on a legal aid basis. While the hourly rate would almost certainly have been higher than that of Ouvry Goodman it would have avoided the duplication which has arisen here. The list is readily available. In appropriate circumstances prior authority could have been obtained from the Legal Aid Board to incur the expenses of a translator for documents which it would not have been appropriate for the Italian speaking fee earner to translate at his level of charging.
Master Seager Berry
"The point is rejected. The litigation friend acted (inter alia) in the capacity of an expert for language/interpretation matters and also as an Italian lawyer based in the United Kingdom. His expertise and services were of crucial importance in acting as a conduit for communication, promotion of the Claimant's case, and overall management of the Claimant's needs/ requirements particularly on the Claimant's return to Italy where the burden of providing for this severely-disabled young man was carried out by the litigation friend. Without the litigation friend's considerable input the Claimant's welfare and care could not have been stabilised and maintained pending trial on liability and quantum of damages. It is no exaggeration to assert that the progress of this action, the question of interim payments, and resettlement of the Claimant, were heavily dependent on the litigation friend and could not have been adequately covered without such professional assistance.With regard to the fees claimed, the litigation friend has furnished a close breakdown of his time. On the basis that this point of dispute is pursued it is intended that the litigation friend will attend the assessment hearing to support and explain the relevance of his involvement. The Costs Judge will be requested to allow the reasonable cost of the attendance of the litigation friend."
i. 17 February 2004 from Mr Nigel Baker QC (who represented the Claimant at the liability trial and who continues to represent him in the damages claim). He referred to the help given by Mr Lombardo as an Italian lawyer well versed in the procedures for personal injury litigants in Italy and in particular the procedures applicable to patients in Italy. Mr Lombardo had acted frequently as an interpreter including the consultation which Mr Baker held at the Claimant's home near Rome and had been an intermediary in communicating with the Claimant and his parents.
ii. 10 July 2003 from Richard Greenwood MD FRCP who was the consultant neurologist. He also referred to the help given by Mr Lombardo in arranging visits to the Claimant, the provision of invaluable information and his translating role in communicating with the family. He explained that Mr Lombardo's understanding of the case and the language had been invaluable. Without his help the two reports could not have been prepared.
iii. 21 July 2003 from Susan Edwards FCSP, a neuro legal physiotherapist. She also referred to the invaluable assistance provided by Mr Lombardo in arranging a visit for the purpose of carrying out her physiotherapy assessment and in providing translation services.
| "Item No. |
Item | VAT | Disbursements | Profit |
| 14 July 1997 SGT Davis of Accident Investigation Unit Engaged: Lombardo – 40 minutes |
166.66 |
|||
| Total: | 166.66 | 29.16 | ||
| 1. | Total Claimed | 195.82" |
"Who may be a litigation friend without a court order
(a) can fairly and competently conduct proceedings on behalf of the child or patient; and(b) has no interest adverse to that of the child or patient; and
(c) where the child or patient is a claimant, undertakes to pay any costs which the child or patient may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or patient.
How a person becomes a litigation friend without a court order
(3) Any other person must file a certificate of suitability stating that he satisfies the condition specified in rule 21.4(3).
(4) A person who is to act as litigation for a claimant must file –
(a) the authorisation; or(b) the certificate of suitability,
at the time the claim is made."
"The litigation friend
(1) of a child –(a) without a court order under the provisions of rule 21.5, or(b) by a court order under rule 21.6, and
(2) of a patient –
(a) by authorisation under Part VII of the Mental Health Act 1983, or(b) by a court order under rule 21.6.
…
(1) consents to act,(2) can fairly and competently conduct proceedings on behalf of the child or patient,
(3) has no interest adverse to that of the child or patient, and
(4) where the child or patient is a claimant, undertakes to pay any costs which the child or patient may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or patient."
i. the Claimant was an Italian and was incoherent as a result of the accident.
ii. The Claimant returned to live in his native Italy within a few months of his accident to be cared for by his parents. It was not practicable for the parents to act as litigation friend. They were not highly educated and did not speak English. They were living in the accommodation provided by a part payment for damages.
iii. The litigation of his claim was conducted in the United Kingdom, where the accident occurred.
iv. It was not unreasonable for the Claimant to use UK solicitors.
v. The role of the litigation friend was crucial to the efficient and effective conduct of this litigation since the accident which occurred in 1997. He had built up a rapport with the Claimant and his parents.
vi. His role was more than merely that of a translator. He acted as a conduit or facilitator between the Claimant and his solicitor; and provided substantial assistance, especially when liaising with the medical and care experts in Italy.
vii. The three references which I have set out above and the contribution which the litigation friend had made to their respective involvement.
i. The Claimant was a patient within the meaning of the Mental Health Act 1983. He was unable to give instructions and was incapable of forming a binding contract (see Chitty on Contracts 27th edition 8-064).
ii. The Claimants' parents, acting as his agent, were not able to enter into a contract because an incapable principal cannot grant authority to an agent (Bowstead on Agency 17th edition 2-009). They could only contract on their own behalf.
iii. No-one had applied for or obtained an order under the Mental Health Act.
iv. No application had been made to register in England the court order permitting the father to manage the Claimant's affairs in Italy.
v. A contract was voidable if the contracting party did not know the party was incapable. That could not apply because Mr Lombardo must have known the full circumstances about the Claimant's health.
Mr Power submitted there could not be any contract between the Claimant and Mr Lombardo for these reasons.
"Restriction on payment otherwise than from the FundWhere a certificate has been issued in connection with any proceedings, the assisted person's solicitor or counsel shall not receive or be party to the making of any payment for work done in those proceedings during the currency of that certificate (whether within the scope of the certificate or otherwise) except such payments as may be made out of the Fund."
"(1) A solicitor who is retained or employed to prosecute or defend any action, suit or other contentious proceedings shall not enter into any arrangement to receive a contingency fee in respect of that proceeding, save one permitted under statute or by the common law."
He submitted that at the hearing on 19 February 2004 it was stated that there was an understanding that Mr Lombardo would be paid if the case succeeded and not if the case was lost. Such an agreement would be a contingent fee agreement. The inference was that Mr Lombardo had been approached, probably by the Claimant's parents, for the purpose of obtaining damages as a result of the Claimant's accident. He undertook work normally performed by a solicitor conducting the proceedings. Mr Lombardo had filed a certificate dated 14 (possibly 19th) June 2000 under CPR 21.5(3) certifying that he could "fairly and competently conduct proceedings" on behalf of the Claimant. He submitted that there was no difference between a solicitor employed "to prosecute or defend proceedings" (rule 8) and a solicitor "conducting proceedings" (CPR 21.5(3)). Accordingly, Mr Lombardo's contingent fee agreement did not comply with Section 58 of the Courts and Legal Services Act 1990 and was therefore unlawful and unenforceable. Rule 8 had statutory force ( Swain v the Law Society [1983] 1 AC 598 and Awwad v Gerherty [2001] QB 570). It appeared that Mr Lombardo had been instructed before Jonathan Clarke & Co and Ouvry Goodman. The claim form was signed by Ouvry Goodman and by Mr Lombardo as litigation friend. I discount that point since it appeared to me to be a drafting error with the reference to Mr Lombardo as being litigation friend inadvertently inserted between the references to Ouvry Goodman and acting as solicitors for the Claimant. On 19 February 2004 Mr Lombardo had signed a costs estimate as solicitor and litigation friend for the Claimant.
"60. There is good reason why principles of maintenance and champerty should apply with particular rigour to those conducting litigation or appearing as advocates. To demonstrate this we can do no better than cite a passage in the judgment of Buckley LJ in Wallersteiner v Moir (No.2) [1975] QB 373 at page 401:"It may, however, be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements. First in litigation a professional lawyer's role is to advise his client with a clear eye and an unbiased judgment. Secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court with a duty to the court to ensure that his client's case … is also presented with scrupulous fairness and integrity … a legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations …"
MY DECISION
"(d) performing an act which is either unusual in its nature or involves unusually large expenditure."
If it was the intention of the Claimant's solicitors to seek to recover the fees of Mr Lombardo or his colleagues they would have made application to the Legal Aid Board for prior authority. That would have been a step which:
"a sensible solicitor sitting in his chair and considering what in the light of his then knowledge is reasonable in the interests of his lay client"
would conclude was necessary (see the judgment of Sachs J in Francis v Francis & Dickerson [1955] 3 All ER 836 at page 840D). A sensible solicitor would also make enquiries about the basis on which Mr Lombardo was retained. If there was any doubt about the terms of retainer he should have investigated the position further, especially when the case appears to have been referred to him by Mr Lombardo. The sensible solicitor would also check on the current prospective costs of Mr Lombardo so that they could be included in the information provided to the Legal Aid Board/Legal Services Commission and included in the details of costs in the allocation questionnaire and listing questionnaire. The sensible solicitor would also address the fact that there can only be one firm of solicitors on the court record and only one nominated solicitor in receipt of the legal aid certificate. None of these issues appear to have been addressed.