High Court of Justice in Northern Ireland Chancery Division Decisions

Northern Bank Ltd v. Leyburn [1998] NICh 5; [1999] NI 62 (27th November, 1998)

Delivered:
27 November 1998

1995 No 222

GIRI2652 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

CHANCERY DIVISION

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BETWEEN:

NORTHERN BANK LIMITED

Plaintiff

AND

JAMES LEYBURN

Defendant

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JUDGMENT

GIRVAN J

1. This matter comes before the court by way of an application under Order 62 rule 35 by the defendant to review the taxation by the Master (Taxing Office) ("the Master") of the costs in the action. The application raises an interesting point relating to the entitlement of counsel to a brief fee where papers were sent to counsel while an application for legal aid was pending and where legal aid had been granted by the time counsel appeared on the first day of the trial of the action. On the hearing of the application Mr McLaughlin QC appeared with Mr Fee on behalf of the defendant and Mr Hanna QC appeared on behalf of the Lord Chancellor to represent the interests of the legal aid fund. I am indebted to counsel for their succinct and well marshalled submissions.

2. The plaintiff in the action, Northern Bank Limited, brought proceedings against the defendant to recover [sterling]166,601.83 being principal and interest on two separate loans. The defendant, a farmer by occupation, was the registered owner of certain registered lands. The issue raised before the trial judge, Campbell J (as he then was) was whether the bank had a good equitable charge on the lands to secure the bank's claim and the extent of the debts secured. At the trial of the matter Mr Keogh of counsel who appeared for the defendant, submitted that a mandate signed by the defendant which led to the opening of a joint bank account with the defendant's sons and a guarantee in respect of the defendant's sons' accounts should be set aside on the grounds of undue inference. If the submissions had been made good it would have materially affected the size of the debt secured by the equitable charge. In the result Campbell J rejected the defendant's arguments and granted the bank the declarations sought. The trial lasted two days and was conducted on 24 January 1996 and 25 January 1996 before the trial judge and the Order of Campbell J made on 9 February 1996 directed that the plaintiff was entitled to its costs of the proceedings and that the costs of the defendant should be taxed in accordance with Schedule 2 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981.

3. The background to the granting of legal aid to the defendant for the trial is of some importance in the case. The solicitors for the defendant applied for emergency legal aid on 24 November 1995 but this was refused on 27 November 1995. An application for full legal aid was renewed. On 22 January 1996 a limited certificate was granted and on 23 January 1996 a full legal aid certificate was issued. As already noted the trial commenced on 24 January with Mr Keogh appearing as counsel on behalf of the defendant.

4. The defendant's financial ability to fund an expensive Chancery Action had clearly been a matter of concern for the defendant's legal advisors. Initial attempts to obtain funding from the defendant had been unsuccessful and the solicitors were clearly and not surprisingly unwilling to commit themselves to running the case without available funds.

5. Mr Keogh had been instructed in the matter some time previously in advance of the granting of legal aid. He received papers in advance of that legal aid and it seems clear that he did preparatory work on the papers submitted in advance of the trial. The finding of the Master indicated that papers were received by counsel on 10 January 1996.

6. Mr Keogh marked a brief fee of [sterling]1,500 and a refresher of [sterling]500. On the taxation before the Master it was the defendant's case that Mr Keogh was entitled to his brief fee out of the legal aid fund. The Master, however, rejected that contention concluding that counsel had accepted instructions in advance of the grant of legal aid and that the solicitor's liability to pay his brief fee had accrued before the grant of legal aid. The Master concluded:-

"... the relevant point of time at which counsel become (sic) entitled to the brief fee in any case is the date of the briefing of counsel either by the acceptance of a formal brief or by the accumulation of the documents in the case to such an extent that Counsel would say to me, as Mr Keogh did here on the Review hearing, that the brief was delivered to him on or about (the relevant date). ...That is the date when the liability of the Solicitors and his client to pay the brief fee arises, regardless of the outcome of the case."

7. It is not in dispute that if a solicitor or counsel undertakes work for a person at a time when the client is not in receipt of legal aid that work is not covered by the legal aid certificate. A party only becomes an "assisted person" when he is a person "in respect of whom a certificate is in force" (see regulation 1 of the Legal Aid (General) Regulations (Northern Ireland) 1965 as revised from time to time). Legal aid is available to any person "to whom a certificate has been issued" in accordance with the Regulations. The Regulations make provision for an investigation of a person's means and for the timing of the sending of a copy of the certificate to the applicant. The Regulations make provisions for the granting of emergency legal aid and certificates in matters of urgency but in this case no such emergency certificate was issued. Regulation 14 provides that whereas after proceedings have been instituted in any court, any party becomes an assisted person in respect of the proceedings the statutory provisions which limit the liability of an assisted person under an order for costs made against him shall apply only to so much of the costs of the proceedings as are incurred while a certificate is in force. Regulation 15 contains the important provision (which is frequently overlooked by instructing solicitors) that every set of papers delivered by an assisted person's solicitors to counsel should be marked "legal Aid". Counsel appearing for an assisted person must be selected from the appropriate panel (Regulation 15(1)).

8. As already noted Mr Keogh received papers on 10 January 1996. This emerges from his evidence and from the solicitor's itemised bill for taxation. He did work on the papers in anticipation that he would be appearing at the trial if legal aid were granted. The inference to be drawn from the evidence is that he was not instructed to appear at the trial if legal aid was not granted and that if legal aid were refused his instructing solicitors would be applying to come off record for the defendant since the defendant had provided no funds to cover the costs of the solicitor for conducting the trial and instructing counsel. When legal aid was forthcoming Mr Keogh was informed of the fact and instructed to appear at the trial. Thus at the commencement of the trial when Mr Keogh appeared on behalf of the defendant Mr Keogh was acting for an assisted party.

9. Central to the Master's reasoning was his conclusion that the brief had been delivered to Counsel on 10 January 1996, that counsel had accepted the brief at that time and that the date of liability of the solicitor to pay counsel his brief fee was the date of delivery of the brief. He relied on well known passages in the judgments of Carswell LJ in the cases of Carr v Poots [1995] NI at 428, Boyd v Ellison & anor [1995] NI at 439 and Adair v Lord Chancellor (unreported July 1996). The passages made the same point and are to the effect that:-

"the fee is that which the solicitor could have agreed with counsel on delivery of the brief as a reasonable and proper fee for that case." (Carr v Poots [1995] NI at 428)

10. The passages referred to relate to the quantum of the brief and the court in those cases was not concerned with the different question as to when the liability to pay the brief accrued. While an instructing solicitor may deliver a brief fee with the brief, in practice and in reality this occurs so rarely in practice that such a practice could be regarded as theoretical rather than a realistic prospect. In reality the brief fee is paid after the case is completed (and often far too long in many cases) and the brief fee reflects both the preparatory work and the first day of the trial. The question of apportionment of the fee between preparation and the court appearance on the first day of trial has never arisen in practice. Neither party in this case argued in favour of the proposition that a brief fee is apportionable. I shall assume without deciding that the parties were correct in their approach on the issue of apportionment.

11. It does appear from the authorises such as Loveday v Renton [1992] 3 All ER 184, to which Mr McLaughlin referred, that in assessing the brief fee the total volume of work reasonably done by counsel by way of preparation for the purposes of the representation of the party at trial and its conduct on his behalf must be taken into account in assessing the brief fee and it is immaterial that he actually did some of the work in anticipation of the delivery of the brief. As Hobhouse J expressed it in Loveday v Renton [1992] 3 All ER 184 and 191-192:-

"The work has to be done sometime by the counsel instructed to represent the plaintiff at the trial and he should be remunerated for it in his brief fee (and not, in the absence of separate authorised instructions in any other way). It is not uncommon (although not in this case, and it is not to be encouraged) that the actual brief is delivered late and the barrister has to start his preparation for his appearance at the trial on the faith of the solicitor's statement that he will deliver a brief; this does not prejudice the assessment of the proper brief fee when the brief is later delivered."

12. The real issue in this case is when Mr Keogh received his instructions to appear at the trial of the action. Concentration on the mechanical questions of when papers were "received", "accepted", or "delivered" misses the central question. The preparation and delivery of a properly prepared brief for trial by solicitors is, of course, one of the central duties of solicitors instructing counsel for trial. A properly prepared brief will contain an outline of the case, should incorporate in orderly form the documentation material to the trial, contain appropriate and detailed witness statements and will give counsel his instructions. These instructions should include the important instruction to counsel to appear at the trial. It is increasingly common for instructing solicitors to fail to deliver such properly prepared sets of instructions and it regrettably must be said that the preparation of briefs for counsel for trial has on occasions become slipshod and inadequate. I cannot comment on the adequacy or otherwise of the papers as prepared for counsel in this case. Where a solicitor has not prepared adequate instructions for trial for counsel the solicitor's fees and costs should be reduced to take account of that omission and counsel's fees should be enhanced to take account of the fact that counsel had to undertake work which properly falls within the responsibility of instructing solicitors. Where a brief incorporating instructions to appear at trial has for some reason not been delivered to counsel that cannot result in counsel losing his or her entitlement to be paid a brief fee and this was duly recognised by the Master in this case. In the absence of a properly formulated set of instructions to counsel it is necessary to ascertain from the evidence and the material supplied to counsel what the instructions were and when they were given.

13. Against the factual background of the present case I am satisfied that Mr Keogh did not receive or accept instructions to appear at the trial until it was confirmed that legal aid was granted. The Code of Conduct for the Bar of Northern Ireland adopted in 1990 states in paragraph 12.03 that a barrister does not accept instructions merely because they have been delivered with or without a fee. He is deemed to have accepted such instructions if he has failed within a reasonable time of receipt to indicate to his instructing solicitors that he is not in a position to accept the same. When the papers were sent to Mr Keogh they were not sent with instructions as such to appear at the trial. Even if they were I am satisfied that the solicitors and Mr Keogh both appreciated that Mr Keogh had not been asked to commit himself and had not committed himself to appear at the trial in the absence of the provision of legal aid. Under paragraph 12.14 of the Code where a barrister accepts a brief he has an obligation to attend at trial. The reverse of that is also true. Where he has not undertaken an obligation to attend the trial it cannot be said that he has accepted the brief.

14. In the result I conclude that Mr Keogh was entitled to a brief fee which will reflect the preparatory work undertaken by him in advance of the commencement of the trial. I shall hear counsel on the question whether the assessment of the brief fee should be remitted to the Master or whether this court should proceed to fix the appropriate brief fee. I shall also hear counsel on the question of the costs relating to the present application.

GIRL2652 IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

CHANCERY DIVISION

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BETWEEN:

NORTHERN BANK LIMITED

Plaintiff

AND

JAMES LEYBURN

Defendant

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J U D G M E N T O F

GIRVAN J