England and Wales High Court (Senior Courts Costs Office) Decisions

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Cite as: [2004] EWHC 9006 (Costs)

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This judgment has been obtained from the Supreme Court Costs Office pages on the HM Courts Service web site. The citation used by BAILII is not an officially approved citation.

		BAILII Citation Number: [2004] EWHC 9006 (Costs)
		Application Nos: 03/A/452

IN THE HIGH COURT OF JUSTICE
SUPREME COURT COSTS OFFICE

Clifford's Inn, Fetter Lane
London, EC4A 1DQ

7 May 2004

B e f o r e :

MASTER WRIGHT, COSTS JUDGE
____________________

Between:

	GLYN PATRICK RYAN	Claimant/ Appellant
	- and -
	DUNSCREST LIMITED	Defendant/ Respondent

____________________

Ms Robina Omar (instructed by Stanley & Co) for the Claimant/Appellant
Mr Nicholas Bard (instructed by Lyndales) for the Defendant/Respondent
Mr John Gimlette instructed by the Legal Services Commission
Hearing dates : 12 and 25 March 2004
On Preliminary Issue
____________________

HTML VERSION OF JUDGMENT
____________________

Master Wright

The Claimant/Appellant (to whom I shall refer as "Mr Ryan") held a long lease of a flat at premises then owned by the Defendant/Respondent (to whom I shall refer as "Dunscrest").

Mr Ryan (with Legal Services Commission funding) brought an action for damages for matters such as nuisance, breaches of covenant, disrepair and (by amendment) assault and trespass to goods and also injunctive relief. Dunscrest counterclaimed for arrears of ground rent and service charges.

The matter came for trial before his Honour Judge Medawar QC at the Central London County Court commencing on 12 November 2001.

On the morning of the third day of the trial (14 November) Mr Ryan dispensed with the services of his counsel and solicitors and left court.

The learned Judge made an order that:

i. the claim be struck out;

ii. judgment be given on the counterclaim (for £6,432.80);

iii. the Claimant to pay the costs, "in such sum if any as is determined under Section 11 of the Access to Justice Act 1999";

iv. the Claimant to pay the sum of £25,000 on account of the costs.

Mr Ryan sought funding to appeal against the Judge's order on the grounds of bias. On 21 November 2001 the Legal Services Commission (to whom I shall refer as the "LSC") refused funding and on 26 November 2001 the certificate was discharged.

On 12 December 2001 the LSC's Funding Review Committee upheld the decision to refuse public funding for the appeal. Funding was also refused for Judicial Review.

Mr Ryan's then solicitors, Yusuf & Baker wrote on a number of occasions to the LSC in an effort to have his certificate reinstated but without success.

On 20 November 2001 the court office drew up the order which the learned Judge had made. The order contained a number of mistakes and omissions.

At a further hearing on 20 December 2001 those mistakes and omissions were considered by the learned Judge. Mr Ryan did not attend that hearing and was not represented. Dunscrest was represented at the hearing by Mr Nicholas Bard. There is a transcript of that hearing which is in evidence before me. The Judge allowed his order to be re-drawn (as approved). After further correction it was then re-drawn again on 24 January 2002.

At the hearing on 20 December 2001 (on the application of Dunscrest) the learned Judge ordered that the £25,000 which he had ordered to be paid on account of costs should be paid to Dunscrest by 17 January 2002.

On 29 January 2002 Mr Ryan (by then acting in person) lodged an Appellant's Notice seeking permission to appeal.

The grounds of appeal (as explained in the supplemental skeleton argument of Mr Ryan's then counsel, Michael Collard dated 1 October 2002) fell into three main categories:

"A. Bias in, and/or misconduct of the hearings on 12-13 November 2001 (grounds 1-6, 16);

B. The substantive orders made in the Appellant's absence on 14 November 2001 and confirmed on 20 December 2001 (grounds 7, 10, 11 and 12);

C. The orders as to costs and charging orders made on 14 November 2001 and modified on 20 December 2001 (grounds 8, 13 and 17)."

On 9 May 2002 the Court of Appeal ordered that the application for permission to appeal should be adjourned for an oral hearing.

On 30 August 2002 a LSC Funding Certificate was issued. The scope of the certificate was:

"As Applicant to be represented on an appeal to the High Court in an action between the funded client/assisted person and the opponent(s).

Date work can commence on the above proceedings: 30/08/02."

The certificate was stated to be limited as follows:

"Limited to obtaining external counsel's opinion or the opinion of an external solicitor with higher court advocacy rights on the information already available."

On 25 September 2002, Mr Ryan's then solicitors, Peter Horoda & Co wrote to the LSC with LSC form APP8 and counsel's 20 page advice. In their letter they said:

"No other enclosures are provided, as in our view everything you need to make a decision is set out in Counsel's Advice.

All of the documents we have refer to the Court of Appeal rather than the High Court, whilst we understand it has become practice on applications for permission to appeal for a single High Court Judge to sometimes hear the application, this does not seem to be the case in this instance and we understand that the application for permission to appeal is listed for hearing on 2 October 2002, before the Court of Appeal.

Please amend the certificate immediately so as to enable us to prepare for that hearing in line with Counsel's Advice."

On 27 September 2002 the application was refused as the LSC required further information concerning the filing of the Notice of Appeal and the reason for the delay. There was no mention in that letter that the LSC were proposing to limit the certificate to the costs issue only.

On 30 September 2002 the application was reconsidered and the scope of the certificate was amended to state:

"As Applicant to be represented on an appeal to the Court of Appeal in an action between the funded client/assisted person and the opponent(s).

Date work can commence on the above proceedings 30/08/2002."

The certificate was stated to be limited as follows:

"Limited to all steps up to and including the hearing of an application for permission to appeal the order of 20 December 2001."

The limitation was stated to be effective 30/09/2002.

On 1 October 2002 (as already mentioned) Mr Ryan's then counsel, Michael Collard prepared a supplemental skeleton argument. In the first paragraph he states:

"On 30 September 2002 the Appellant was granted public funding to pursue his appeal against the Order of His Honour Judge Medawar QC dated 20 December 2001 (drawn 24 January 2002). The public funding excludes any grounds of appeal relating to bias and/or misconduct."

It is understood that at that time Mr Collard had not seen the actual certificate.

On 2 October 2002 the matter came before Lord Justice Buxton (as an application for permission to appeal). He ordered that:

i. The Claimant's lawyers provide evidence in relation to the bias issue.

ii. The Defendant provide submissions on the costs issue.

On 10 December 2002 Lord Justice Buxton gave Mr Ryan permission to appeal on grounds 8, 13 and 17 only (these relate to the orders about costs and their associated charging orders which are referred to in paragraph 13 above). This is referred to as "the Costs Appeal".

He dismissed the application in respect of the other grounds. This is referred to as "the Merits Appeal".

On 11 June 2003 Mr Ryan's Costs Appeal was resolved by consent in Mr Ryan's favour. The relevant part of the order states:

"AND BY CONSENT IT IS ORDERED THAT:

1. There shall be quashed and set aside the following provision of the order of His Honour Judge Medawar QC originally made on 14 November 2001 and re-drawn on 20 December 2001, a copy of which (as re-drawn) attached Minutes of Order marked "D", that:
4. The Claimant do pay Defendant's solicitors the sum of £25,000 on account before the costs assessed and by a date or dates to be specified by the court in due course on application being made by the Defendant."
2. There shall be quashed and set aside the further order of His Honour Judge Medawar QC made on 20 December 2001, a copy of which is attached to this Minute of Order marked "C".

3. The Charging Order Nisi dated 20 December 2001 providing for a charge over the Claimant's property at Flat 3, 9 Malvern Road, Kilburn, London NW6 attached hereto marked "A" be varied and substituted with the Charging Order Nisi marked "B".

4. The Defendant is to pay the Claimant's costs arising out of Ground 8 of the Claimant's Notice of Appeal, to be assessed if not agreed on the standard basis, and set off against such costs as are due to the Defendant by reason of Lord Justice Buxton's Order of 10 December 2002.

5. There be a detailed assessment of the Claimant's costs pursuant to paragraph 4 of the Community Legal Services (Funding) Order 2000."

On 30 May 2003 Dunscrest's solicitors Lyndales issued an application on Dunscrest's behalf for a determination of:

"what part of the costs directed by the Court of Appeal to be paid by the Claimant/Appellant to the Defendant/Respondent pursuant to the Order of … 10 December 2002."

The Application was accompanied by a Witness Statement made by Colin Brian Edward Jaque, a partner in the firm of Lyndales the solicitors for Dunscrest (I shall refer to him as "Mr Jaque"). Honour

Mr Jaque had conduct of the proceedings on behalf of Dunscrest and exhibited to his witness statement a bundle of copy correspondence between Peter Horoda & Co (the solicitors who had been acting for Mr Ryan in the proceedings before the Court of Appeal) the Legal Services Commission and Lyndales.

In that bundle there is a letter addressed to Lyndales by the Legal Services Commission dated 20 May 2003 in which they say:

"Further as funding was limited (which I understand was apparent from the skeleton argument produced by the assisted person's counsel) and as the costs order against the assisted person was in relation to the aspect that was not funded then pursuant to Regulation 5(4) of the [CLS (Costs Protection) Regulations 2000 as amended ("CP Regs")] you would not be entitled to include in your claim those costs as against the Commission. It is therefore clear that any application against the Commission would not succeed."

Lyndales replied to the LSC on 28 May 2003. In their letter they say:

"Under normal circumstances we think you would accept that in supporting the Claimant in his appeal the Legal Services Commission would expect to be responsible to pay the costs of an appeal which was lost. In this case, apparently the Legal Services Commission, so you now tell us, gave only a very limited legal aid certificate for the purposes of the appeal against the County Court costs order, and it was Mr Ryan who apparently extended the appeal to other aspects of his Notice of Appeal.

We understand from you that it is your case that the court should not require the Legal Services Commission to pay any part of the costs of the appeal which was not supported by you and you wish to be heard in that respect. Indeed, we believe it is your intention to intimate that Mr Ryan should not be considered as an assisted person in relation to any aspect of the appeal which was not funded by the Legal Services Commission."

Also on 28 May 2003 Lyndales wrote to Peter Horoda & Co:

"The Legal Services Commission have at last written to us when we pressed them to let us have an answer as to whether they wished to make an application to the court in relation to the order made by the Court of Appeal as to the apportionment of costs between your client and themselves.

We have spoken to them on the telephone and as a result written them a letter a copy of which we enclose. They are concerned to be heard on the question of apportionment of the costs as between your client and them on the basis that the legal aid funding was limited to only that aspect of the appeal where your client was in effect successful. They are suggesting that there should be no responsibility for the costs of that part of the appeal which was the subject of the Order in December last. They will apparently maintain that, as your client recovered his costs, no order should be made against them.

We are therefore issuing an application which we think will have to be adjourned to the hearing of the assessment of the costs on both sides and we will also request directions …"

It is evident that Lyndales had not seen Mr Ryan's legal aid certificate at this stage because in both their letter to the LSC and their letter to Peter Horoda & Co they asked to see a copy of it.

There was a directions hearing on 7 July 2003 which was attended by Mr Kirkham of Lyndales representing Dunscrest, Mr Ryan who appeared in person and Mr Sydney Chawatama of counsel instructed by the LSC. Peter Horoda & Co had written to the court on 4 July sending a copy of their letter to Lyndales of the same date in which they said:

"We are wholly unclear at present as to whether the scope of our existing certificate will cover representation on the determination of costs issue so will not be in attendance on the 7^th July 2003."

It is evident that neither Lyndales nor Peter Horoda & Co had by that time received the Court of Appeal's Order dated 11 June 2003.

The Order made at the hearing on 7 July required the Legal Services Commission to supply to the court and to the Defendant's solicitors copies of Mr Ryan's Legal Services Commission Certificates and any amendments thereto in respect of both the proceedings in the Central London County Court and the Court of Appeal within 14 days without prejudice to the Commission's contention that it had no liability in the matter. The Order went on to adjourn the directions hearing generally with permission to any of the parties to restore it for hearing. The costs were reserved.

Copies of Mr Ryan's Public Funding Certificates were duly provided by the LSC and a copy of the Court of Appeal's Order of 11 June 2003 (entered on 16 June 2003) was duly received from Lyndales.

In addition, and also in accordance with the Order of 7 July 2003, Lyndales sent to the court a copy of the Order of the Central London County Court dated 1 July 2003 whereby the detailed assessment of Dunscrest's bill in respect of the County Court proceedings was transferred to the Supreme Court Costs Office.

On 12 July 2003 Lyndales served a Notice of Commencement of Bill of Costs and a bill totalling £16,653.31.

On 26 August 2003 the LSC wrote to Lyndales stating (among other things) that:

"The relevant limitation is that dated 30 September 2002 which limits funding to an application for permission to appeal only as against the order made on the 20^th December 2001. It is also quite clear from the supplemental skeleton argument at paragraph 3 that the scope of the certificate was limited."

On 5 November 2003 Lyndales requested a detailed assessment hearing with directions "as to any liability which the LSC might have". On 16 January 2004 the Supreme Court Costs Office gave notice that the detailed assessment of the Claimant's bill would take place on 12 March 2004. No Notice of Commencement of Mr Ryan's bill had been served.

On 10 February 2004 Lyndales on behalf of Dunscrest made the present application for a preliminary issue to determine the extent to which Mr Ryan had Community Legal Service Funding:

"because only then can it be determined who is liable to pay the Defendant's costs (to the extent ordered) in the Court of Appeal – and additionally only then can it be determined whether and to what extent the Claimant's legal advisers are entitled to payment for certain work performed in relation to the Court of Appeal hearings."

The Application was accompanied by a Witness Statement made by Mr Jaque with a bundle of selected documents.

The application was heard by me on 23 February 2004 when Dunscrest was represented by Mr Nicholas Bard, Mr Ryan was represented by Ms Robina Omar and the LSC was represented by Mr John Gimlette.

At that hearing an Order was made by me which provides (so far as relevant) that:

i. the detailed assessment hearing appointed for 12 March 2004 be vacated to be heard on a date to be fixed;

ii. the preliminary issue sought by the Defendant's Application be adjourned to be heard on 12 March 2004;

iii. the Claimant and the LSC provide standard disclosure relevant to the preliminary issue by 4 pm on 2 March 2004;

iv. a proper officer of the LSC must serve a Witness Statement in relation to the preliminary issue by 5 March 2004;

v. the Claimant must serve any evidence relevant to the preliminary issue by 10 March 2004;

vi. …

vii. costs reserved.

A witness statement was made on 4 March 2004 by Kulvinder Bagri, a solicitor employed by the LSC. I will refer to him as "Mr Bagri".

Mr Bagri referred in his witness statement to nine exhibits.

A witness statement was made on 10 March 2004 by Laurence St Lyon (a trainee solicitor with the firm of Stanley & Co) who has conduct of Mr Ryan's litigation in this matter under the supervision of his principal. Stanley & Co had given notice on 19 February 2004 that they had been instructed on behalf of Mr Ryan in place of Peter Horoda & Co and had on the same day given notice of funding of case or claim. As yet a copy of the CLS Funding Certificate has not been provided to the court.

Exhibit "LSL 1" to Mr St Lyon's witness statement contains copies of numerous documents, attendance notes and letters which are listed in an index and referred to by him in his statement.

In addition I have been given written revised submissions by Mr Gimlette on behalf of the LSC (dated 11 March 2004), written submissions of the Claimant by Ms Omar (dated 12 March 2004) and written submissions in response by Mr Gimlette on behalf of the LSC dated 25 March 2004.

The hearings took place on 12 and 25 March 2004 when I heard oral submissions by Mr Gimlette, Mr Bard and Ms Omar. I reserved judgment and I thank all of them for their considerable assistance.

In her written submissions Ms Omar says:

"27. When construing the scope of the funding certificate the court will have regard to the rules of construction. Though the object of construction is to ascertain the intention of the parties, however the question is not what the party construing the document meant or understood by the words, but "the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation …" (Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912). Further principal of construction is that the fact that a document is badly drafted is no reason to depart from the normal rules of construction." (Sinchem International Oil (London) Co Ltd v Mobil Sales and Supply Corp [2000] 1 Lloyds Rep 339, 334).

Ms Omar also states in her written submissions:

"26. The Preliminary Issue is of vital importance to the Claimant as if he has cover for the entire appeal proceedings, his personal liability is restricted and if not then he is personally liable for costs (CLS (Costs Protection) Regulations 2000). The Claimant has always maintained that he had funding for the entire appeal proceedings."

Mr Ryan's application for CLS funding to appeal was made on 24 August 2002. Accordingly the Access to Justice Act 1999 ("AJA") applies (Article 5(1)(c) of the Access to Justice Act 1999 (Commencement No.3, Transitional Provisions and Savings) Order 2000). Mr Ryan will therefore be entitled to costs protection only to the extent that the CLS (Costs) Regulations 2000 allow. "Cost Protection" is defined in the CLS (Costs Protection) Regulations 2000 as:

"the limit on costs awarded against a client set out in Section 11 of the AJA".

As Mr Gimlette pointed out in his revised submissions:

"30. The issue is of critical importance. If the Claimant had public funding (a) he has costs protection and his personal liability is restricted (s11 AJA) and (b) the LSC are potentially liable to the Defendant for the costs awarded against the Claimant (see CLS (Costs) Regulations 2000, reg 5(2)).
31. Proceedings may be divisible; some parts have costs protection, others don't. Reg 5(4) states "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 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"."

In his witness statement Mr Laurence St Lyon (to whom I shall refer as "Mr St Lyon") says:

"4. The entire history of the funding is not relevant to determine the application before the court and therefore I do not propose to recite it here. The relevant background in my view is summarised below:

(i) 14 November 01 His Honour Judge Medawar first made order striking out the Claimant's claim and awarded costs to the Defendant and further that £25,000 be paid to the Defendant on account of costs. This order was originally drawn on 2 December 01.

(ii) On 20 December His Honour amended substantially the order of 14 November 01 and also made an Order concerning enforcement of costs. As a result two orders were drawn both shown as having been made on 20 December 01.

(iii) The substantive order was re-drawn again on 24 January 02, however the date of the order was still shown as 20 December 01."

The orders to which Mr St Lyon refers are exhibited to Mr Jaque's witness statement dated 10 February 2004 at pages 3, 4 and 5. The order exhibited on page 3 is that made on 20 December 2001 and can only (in my judgment) be that referred to in paragraph 4(ii) of Mr St Lyon's statement where he says:

"and also made an order concerning enforcement of costs."

The "substantive order" to which Mr Lyon refers can only (in my judgment) be that which appears on page 4 of the exhibit to Mr Jaque's statement. Although at its foot and at its heading there appears the date "20 December 2001" there is no doubt (in my judgment) that this was the order made by His Honour Judge Medawar QC on 14 November 2001. It may be that it was actually drawn on 2 December 2001 (as Mr St Lyon suggests) or alternatively it may have actually been drawn on 20 November 2001 but in either event the originally drawn order cannot now be found. As Mr St Lyon states, the substantive order was amended substantially on 20 December 2001 and was re-drawn again on 24 January 2002 as appears on page 5 of the exhibit to Mr Jaque's statement.

Mr Ryan's LSC certificate (as appears in paragraph 20 above) is limited "to all steps up to and including the hearing of an application for permission to appeal the order of 20 December 2001". The court must therefore determine whether the certificate extends only to the application for permission to appeal the order which appears on page 3 of the exhibit to Mr Jaque's statement or whether it extends also to the application for permission to appeal the orders which appear on pages 4 and 5 or either of them.

Ms Omar says in her written submissions (and repeated in her oral argument):

"28. At the date of the appeal the Claimant had the benefit of the funding certificate which stated to cover the appeal of the order of 20 December 01. The Claimant says that covered the entire appeal on the following grounds.

(a) The Order made on 14 November 01 and drawn on 2 December 01, was amended substantially on 20 December 01, it is important to note also that the preamble to the order of 20 December 01 gave leave to amend the order of 14 November 01. It is submitted that the order of 14 November was either subsumed or was perfected on 20 December 01.

(b) When the order made on 14 November 01 was re-drawn it was not only dated as 20 December 01 it was shown as having been made on 20 December 01 together with the order of enforcement of costs.

(c) On 24 January 02 the order given on 14 November but amended and re-drawn on 20 December 01 is re-drawn again, however the date on which the order was made was still shown as 20 December 01.

(d) At the date of the funding application therefore, there were two orders of 20 December 01, but both being referred to as order of 20 December 01."

Mr Gimlette in his written submissions (and repeated in his oral argument) says:

"32. The wording of the certificate is crucial. At the date of the appeal, the Claimant had public funding "to appeal the order of 20 December 2001". Which order does this refer to? There are two possibilities:

(1) the order made on 14 November 2001 (and dated 20 December 2001), dealing with merits and costs;

(2) the order made and dated 20 December 2001, dealing solely with costs.
33. The Claimant says it was (1) on the basis that, as an error made by the trial Judge in relation to costs emanated from the order made on 14 November, it was this order that was being appealed. He says that as this order was dated 20 December (albeit wrongly), it was this order that was being appealed, and thus the merits appeal was covered by the certificate. It is submitted this argument is flawed for reasons as follows.

34. First, no order was made in relation to the merits appeal on 20 December and everybody agrees that the draft order is wrongly dated.

35. Second, if it is the date the order was drawn that counts, the merits order was not ultimately drawn on 20 December in any event; it had to be corrected again and was re-drawn on 24 January 2002. Its connection with "20 December" was therefore not only wrong but transitory.

36. If the certificate is to be regarded as referring to the day the order was drawn rather than the day it was actually made, it would have referred to the order of 24 January 2002. This after all was the draft order (on the merits) which was extant at the time the certificate was issued.

37. Third, where the certificate refers only to one order (singular) and a question arises as to whether this refers to either (a) an order made and drawn on a certain date or (b) an order merely drawn on that date, it makes no sense to interpret the certificate as referring to the latter to the exclusion of the former (and there is no scope for saying that both orders came within the scope of the certificate) NB the logical effect of the Claimant's present submissions is that he did not have funding to appeal the costs order that everyone agrees was made and dated 20 December.

38. Fourth, the fact that the unlawful costs order emanated from the earlier order (14 November) does not mean that it was that order rather than a later enforcement order (20 December) that the certificate was intended to cover. Unlawful though it may have been in the first order, it was inchoate and of no consequence. It was only once it was enforced and became operative that an appeal was needed. Thus it was both logical and sufficient that the certificate only covered the enforcement stage of the unlawful order.

39. Fifth the Claimant's present contention that he had cover in relation to the merits issue (and not the costs issue?) is inconsistent with what the Claimant's lawyers understood to be the position at the time, they didn't think the LSC had extended funding to cover the merits appeal."

In my judgment there is no ambiguity in the wording of the certificate. When the limitation refers to "the order of 20 December 2001" this must (in my judgment) refer to the order which was both made and dated 20 December 2001 which is the order exhibited to Mr Jaque's statement at page 3. The order which is exhibited at page 4 was actually made on 14 November 2001 and re-drawn on 20 December. The order which appears on page 5 was actually made on 14 November 2001, re-drawn on 20 December and re-drawn again on 24 January 2002.

Even if a reasonable person having all the background knowledge could still be in doubt (which I consider is most unlikely) the following matters should be considered.

When Mr Ryan's solicitors wrote to the LSC on 25 September 2002 asking for the certificate to be amended they did not send copies of the orders (see paragraph 17 above). They did however send a copy of Mr Collard's advice. In his advice he distinguishes between the order which the learned Judge had made on 14 November and "a further order" which was made on 20 December "that the Claimant pay the sum of £25,000 on account of costs by 4 pm 17 January 2002" (see paragraph 4 of the advice which is in exhibit "KB6" to Mr Bagri's witness statement).

At paragraph 15 of the advice Mr Collard says:

"15. To succeed on this ground the Court of Appeal would have to hold that the court wrongly exercised his discretion whether or not to strike out the claim. In the absence of any explanation for Mr Ryan's absence, the Court of Appeal is unlikely to criticise the Judge's decision. It would only be likely to overturn the decision if it accepted new evidence as to why he not only departed but also left without any representation. Stronger medical evidence, or an explanation from Mr Leech as to why he did not inform the Court of Mr Ryan's illness could be enough. At this stage, permission to appeal the striking out of the claim will only be given if the court considers that the uncertainty regarding the events of 14 November 2001 constitutes some other compelling reason to give permission to appeal."

It seems to me that a reasonable person seeing this advice would consider that the LSC (without further evidence which was not in fact provided) would not have given authority to appeal on the "merits" ground of appeal.

However in paragraphs 16 to 19 of his advice, Mr Collard considered that there were valid grounds for an appeal under Mr Ryan's ground 8 "in that the Judge failed to consider properly his ability to enforce a costs order". That was clearly a reference to the order made on 10 December 2001 and dated 20 December 2001.

Accordingly the LSC were aware of two separate orders, one made on 14 November 2001 and the other made on 20 December 2001.

In his witness statement Mr St Lyon describes the events leading up to the hearing before the Court of Appeal on 10 December 2002. It is evident from the attendance notes and correspondence to which he refers that both counsel were unclear as to the extent of Mr Ryan's costs protection.

On 6 December 2002 the Claimant's solicitor wrote to the LSC (the letter is exhibited to Mr St Lyon's statement). They ask for confirmation that the certificate does indeed cover all aspects of the appeal. It is not clear by what means the letter was delivered to the LSC but the reply is dated 10 December. The relevant paragraph states:

"The terms of cover provided must obviously be taken at face value, and the question of what specific work can be said to be covered will be a matter for justification on assessment of costs at the end of the day. The assessing officials will no doubt bear in mind, inter alia, the history of the matter and the relevance of particular aspects to the main proceedings."

It seems to me that this shows no more than that the LSC thought the wording of the certificate was clear.

When the parties attended before Lord Justice Buxon on 10 December 2002 it appears that the Claimant's counsel was under the impression that Mr Ryan's funding covered both the Merits Appeal and the Costs Appeal. Dunscrest's counsel (and, indeed, their solicitors) had not seen the certificate but accepted what Mr Ryan's legal team asserted. Lord Justice Buxton appears to have accepted their view (which is not surprising since it could not be challenged). Therefore, in view of his concern over the conduct of the proceedings before His Honour Judge Medawar QC, he made the directions in paragraph (9) of his order. It seems to me that the question as to whether Mr Ryan was "in receipt of services funded by the Legal Services Commission" in respect of the Merits Appeal was not argued before Lord Justice Buxton and that his assumptions about the nature of the funding do not amount to a finding which affects the question I have to determine.

In my judgment the certificate is limited to an application for permission to appeal the order of 20 December 2001 which is the order which appears at page 3 of the exhibit to Mr Jaque's witness statement of 10 February 2004.

It was submitted by Mr Bard on behalf of Dunscrest that all work done between 30 August 2002 and 30 September 2002 regardless of whether it related to the Merits Appeal or the Costs Appeal is covered by the certificate so that costs protection in respect of all work done in the Merits Appeal will apply for that period. I do not agree and accept the submission made by Mr Gimlette that the certificate during that period was limited to obtaining Counsel's opinion "on the information already available". This would cover the work done by solicitors and counsel in obtaining counsel's opinion in respect both of the Merits Appeal and the Costs Appeal but any other work would be outside the scope of the certificate.

If the parties attend when this judgment is handed down I will hear submissions about costs and any request for permission to appeal and I will give directions as to the future conduct of the detailed assessment. If the parties do not attend I will appoint a later hearing date so that these matters can be considered then.