Costs

Background

The issue raised by the present appeal was whether a litigant in person, in whose favour a costs order had been made, could recover for work undertaken by a foreign lawyer.

In earlier proceedings (see[2016] EWHC 1828 (Ch)) a judge had ordered the respondent to pay the appellant’s costs. During the summary assessment of those costs, a question had arisen as to whether the appellant, who had appeared as a litigant in person for part of the proceedings, could recover for costs incurred in respect of a Jersey firm of lawyers, Dickinson Gleeson, which had assisted him in the proceedings. Most of the relevant work on behalf of the appellant had been undertaken by one partner in Dickinson Gleeson (J), who had qualified as a solicitor in England and Wales in 1997, but who had not been entitled to practise as a solicitor in the jurisdiction during the period relevant to the present appeal.

The judge held that services provided by a lawyer qualified in another jurisdiction did not constitute ‘legal services’ for the purposes of CPR 46.5(3)(b), which provided that the ‘litigant in person shall be allowed … (b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings’.

The appellant appealed.

Appeal dismissed.

Issues and decisions

Whether the judge had erred. The appellant submitted that CPR 46.5(3)(b) did not state that it applied only to services provided by lawyers qualified in England and Wales. While CPR 46.5(2) and 46.5(3)(a) had used the term ‘legal representative’, which referred to someone with a qualification in the present jurisdiction, CPR 46.5(3)(b) did not. Accordingly, the appellant submitted, it was to be inferred that the intention was that CPR 46.5(3)(b) could apply to legal services supplied by someone other than a ‘legal representative’.

Although CPR 46.5(3)(b) did not state so expressly, it could be seen from the authorities that legal services had to be ‘provided by or under supervision of a lawyer’. It was implicit in the provision that the lawyer had to be someone who could be expected to be competent to supply services ‘relating to the conduct of the proceedings’ which would be proceedings in the present jurisdiction. A lawyer qualified in England and Wales would be such a person, but a foreign lawyer would not. A foreign lawyer, lacking a qualification in the present jurisdiction, could not be regarded as a ‘lawyer’ or, hence, providing ‘legal services’ for the purposes of CPR 46.5(3)(b), because what mattered in that context was expertise in the law and procedure governing the relevant proceedings, namely that of England and Wales.

That conclusion made sense in public policy terms. The true policy consideration in the interpretation of the CPR was that those who provided advice and assistance in connection with litigation in the jurisdiction of England and Wales should be properly qualified, regulated and insured in the jurisdiction (see [11], [12] of the judgment).

The appellant’s submissions were not well-founded. Dickinson Gleeson’s position, so far as the English proceedings were concerned, had been that of lay persons. In all the circumstances, the judge had been correct (see [11], [13], [14] of the judgment).

Uhbi (t/a United Building & Plumbing Contractors) v Kajla [2002] All ER (D) 265 (Apr) followed; Agassi v Robinson (Inspector of Taxes) (Bar Council intervening) [2006] 1 All ER 900 followed.

Decision ofDavid Foxton QC [2016] EWHC 1828 (Ch) affirmed.

John Machell QC (instructed under the Bar Public Access Scheme) for the appellant.

Andrew Twigger QC and Narinder Jhittay (instructed by Taylor Wessing LLP) for the respondent.

Carla Dougan-Bacchus Barrister.

A foreign lawyer lacking a qualification in England and Wales could not be regarded as a ‘lawyer’ or as providing ‘legal services’ for the purposes of CPR 46.5(3)(b). Accordingly, the appellant, a litigant in person in whose favour a costs order had been made, could not recover for work undertaken by his foreign lawyer. The Court of Appeal, Civil Division, so held in dismissing the appellant’s appeal.