Wednesday, 9 April 2008

LIP COSTS

Neutral Citation Number: [2002] EWCA Civ 250
IN THE SUPREME COURT OF JUDICATURE C/2001/1317
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Royal Courts of Justice
Strand
London WC2

Friday, 8th February 2002
B e f o r e :

LORD JUSTICE SCHIEMANN

-and-

LORD JUSTICE RIX

- - - - - - - -

IN THE MATTER OF THE QUEEN ON THE APPLICATION OF WULFSOHN
Applicant

- v -


LEGAL SERVICE COMMISSION
Defendant
- - - - - - - -
(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - -

The Appellant appeared in person
The Respondent did not attend and was unrepresented
- - - - - - - -
J U D G M E N T
(As approved by the Court)
Crown Copyright
Friday, 8th February 2002
1. LORD JUSTICE SCHIEMANN: Before the court is an appeal brought with the leave of Dyson LJ from a decision of Collins J in relation to costs payable to a litigant in person, Mr Wulfsohn. Collins J had found in favour of Mr Wulfsohn in a judicial review application which was brought by him against the Legal Services Commission who, in substance, refused to give him aid in relation to litigation concerning possession of his house, which was the underlying dispute. Mr Wulfsohn had won his main battle but the only amount of costs that he obtained was £120. That came about in this way. After Collins J had said that Mr Wulfsohn's application for judicial review succeeded, Collins J continued:
“Now, Mr Wulfsohn, you are entitled to any costs you have incurred. You are not entitled to the costs of any research you may have done, but merely to, for example, travel expenses...”
2. Collins J was then referred by Mr Wulfsohn to the Civil Procedure Rules. Mr Wulfsohn said:
“[They say] that I should be allowed two thirds of the amount which would have been allowed if I had a representative.”
3. To which Collins J said:
“Is that what they say now? I do not think so. MR WULFSOHN: Yes, Rule 48.6 of the Civil Procedure Rules.
MR JUSTICE COLLINS: Well,'not entitled to more than two thirds'. It does not say that you are entitled to two thirds.”
4. At that point the judge must have been referring to Rule 48.6(2), which reads:
“The costs allowed under this rule must 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.”
5. There was no reference made in the discussion to paragraph (4) of those rules, which says:
“Subject to paragraph (2), the amount of costs to be allowed to the litigant in person for any item of work to which the costs relate shall, if he fails to prove financial loss, be an amount in respect of the time spent reasonably doing the work at the rate specified in the costs practice direction.”
6. The matter was dealt with very swiftly by Collins J on what was no doubt a busy day. He initially said:
“I cannot make a summary assessment. You have to set it out in detail, if you say you are entitled to it.”
7. There was then some discussion about photocopying, and Collins J said:
“... a litigant in person is not normally entitled to costs of time spent on research, and essentially you cannot claim for any time you spent doing anything.”
8. There was then a discussion about the photocopying and at the end of the day Collins J awarded £120, largely as a result of calculations in relation to photocopying and a train journey, and he said:
“Does that sounds reasonable?”
9. Miss White, who appeared for the Commission said:
“My Lord, yes.
MR JUSTICE COLLINS: In that case, to avoid further costs and problems I will order that you are paid your costs in the sum of £120.”
10. Mr Wulfsohn tried to take the matter further but he got fairly short shrift from Collins J and nothing further appeared.
11. What led Dyson LJ to give leave to this court was his fear that Collins J had not taken into account what should have been the right approach to a litigant in person. If one reads together 48.6(2) and (4) one sees that, in principle, a litigant in person is entitled to compensation for his time, and the rate is fixed by Statutory Instrument and at all relevant times was £9.25 per hour. But there is a cap which is that however long a litigant spends in person doing things he cannot recover more than, broadly speaking, two-thirds of what his legal representatives would have done if he had had a lawyer.
12. In the present case it is to my mind obvious from the nature of the case that a good deal of time has been spent by Mr Wulfsohn on the exercise, and he is, I would hold clearly entitled to considerably more than the £120 which the judge gave him. I was originally minded, therefore, to send the matter to a costs judge to work out. However, that would have increased the costs of matters very substantially.
13. We have not been helped by the presence of anybody from the Legal Services Commission. Their position has been communicated to the court in a letter of 8th November 2001 which they wrote after having received the order by Dyson LJ granting permission to appeal. In that letter they say that the Commission received Mr Wulfsohn's notice of appeal and in an attempt to save costs they wrote to Mr Wulfsohn asking him to provide them with a cost schedule outlining the costs that he was claiming at litigant-in-person rates. It is likely that if he were to produce such a schedule the Commission would agree to pay those costs so as to avoid the costs of this appeal:
“To date, Mr Wulfsohn has not responded to our request. In the circumstances the Commission is not proposing to be represented at this appeal and accepts that it will be liable to pay such sum as the court, if it allows this appeal, orders to be paid at litigant-in-person rates to Mr Wulfsohn.”
14. That, I suspect, explains their absence in front of the court today. It seem to us that, given that that was their broad approach and given that Mr Wulfsohn had told us that he had served them with a rough costs schedule on Monday of this week and with a slightly less rough costs schedule on Wednesday, in each of which he set out (as he had done in front of Dyson LJ) that he had been engaged for about 1200 hours plus on research, and given that they have not turned up and that they are trying to save costs, it would be sensible for us to take evidence from Mr Wulfsohn as to the costs that he had incurred; and so we did.
15. It appears that the history of this matter is a relatively complex one. The Commission having taken a decision that Mr Wulfsohn did not qualify for legal aid he applied for permission to judicially review that decision. That was turned down by Sullivan J on paper. He then applied in person in front of Harrison J and it was turned down again. He then settled a notice of appeal and came before Brooke LJ where he turned up in person again and this time the appeal was allowed and leave was granted to move for judicial review. The matter went back to the administrative court.
16. There was a preliminary hearing in front of Turner J in relation to a dispute over discovery. In the course of that hearing we are told that the Legal Services Commission produced a bill for the purposes of an immediate assessment of costs of £1200 in relation to that application. However, Turner J said that costs were to abide by the event. He did not himself assess them one way or the other, but he ordered the costs were to be in the case.
17. The matter then came as a substantive hearing before Collins J and this time counsel appeared on the other side. Collins J gave a careful judgment which ran to 55 paragraphs. In the course of it he examined a considerable number of documents and the very complicated regulations which govern the affairs of the Commission, and he decided at the end, as I have indicated, that Mr Wulfsohn had won. But because the costs order had been so unsatisfactory from Mr Wulfsohn's point of view, he then had a hearing in front of Dyson LJ and finally a hearing in front of us as well.
18. What are we to do? We are bidden by the Civil Procedure Rules to exercise our powers in such a way that the case is dealt with in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party so as to ensure that it is dealt with expeditiously and fairly, and allotting to it an appropriate share of the court's resources whilst taking into account the need to allot resources to other cases. It is those considerations which have led us to an endeavour to reach a just solution in this case with which both parties should be able to live.
19. There is one other document which was produced to us today which is from Waller & Company Solicitors which is dated today, and says:
“On the limited information that we have been provided by yourself [that is with Dr Wulfsohn], and the Citizens' Advice Bureau in the Royal Courts of Justice and having seen at a very preliminary stage the documentation with regards the above matter we would estimate that the legal cost would be in the region of £15,000 to 20,000 plus VAT.”
20. We have taken that into account, though it is, of course, a very rough-and-ready assessment. Doing the best we can we think an appropriate approach is as follows. We accept from Mr Wulfsohn that he has spent a very considerable amount of time on this.
21. There have been a considerable number of hearings. The matter is of importance and complexity, as is shown by the fact that the Legal Services Commission, which must know its own regulations backwards, one would have thought, thought that a bill for £1,200 was appropriate merely for a hearing in relation to an order for disclosure. The hearing in front of Collins J was clearly a longer one. The applicant had to get all the documents in order (which he did) and produced a long bundle for them. He must have done a lot of research, and he has told us on evidence (which I have no reason to disbelieve) that he spent well in excess of 1200 hours altogether on this exercise so far. It seems to me that the right course in these circumstances is to start with the cap, if you like, as to what this exercise would have cost if it had gone to lawyers in the first place. Doing the best I can on the information in front of us, and being extremely rough-and-ready about it, I would put that figure at £15,000, which means that there would be a cap in relation to Dr Wulfsohn of £10,000. On top of that he does claim one or two things which are not caught by the cap in his schedule. I regard Dr Wulfsohn as having spent an amount of hours on this exercise which, at a rate of £9.25 per hour, would take him above the cap. I regard him as being entitled in principle to the figure of £10,000, to which I would add the charges for photocopying, postage and travel which, between them, come to £460.
22. I would allow the appeal, and I would award him costs of £10,460 in total.
23. I ought to say that there is a hint in the correspondence that it was arguable that Dr Wulfsohn had agreed to the figure of £120 settled on by the judge but, in my judgment, that is not a fair reading of what happened at the end of the day in front of Collins J.
24. LORD JUSTICE RIX: I agree.
(Appeal allowed; Applicant awarded £10,460).

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