Case stated — Prosecution under the Environmental Protection Act — Tenant on income support — Landlord ordered to pay costs in action — Landlord alleging contractual arrangement that solicitors for tenant would not look to tenant to pay fees — Whether fees “properly incurred” — Appeal by landlord allowed
This was an appeal by way of case stated in respect of an adjudication of the magistrates sitting at West Bromwich. The appellant board owned a number of low-cost properties, one of which was rented out to the respondent, who was on income support. She complained that a statutory nuisance existed on the premises at 4 Cupfields Avenue, Tipton, and which was likely to be prejudicial to health contrary to section 79(1) of the Environmental Protection Act 1990. The respondent consulted a firm of solicitors and an information was preferred against the board which pleaded not guilty. In the proceedings, the board was ordered to abate the nuisance and to pay the respondent the costs of her proceedings of £8,963.99p. Legal Aid was not available for proceedings under the Act.
When the question of costs arose, the board asked for confirmation of its contention that the firm of solicitors acting for the tenant would seek payment of its costs from the board, but that if it had been unsuccessful it would not have sought payment from the client. At an adjourned hearing a partner in the firm stated that there had been no contractual arrangements to that effect, that the case was very strong and that they had never considered losing the case. Thus, there was no question of a contingency fee arising. The justices found that the fees had been properly incurred in the proceedings, but stated a case to the divisional court. On appeal the board argued that there had been an agreement — express or implied — between the respondent and her solicitors that the latter would not in any circumstances look to her for any part of the costs. The solicitors contended that it was a test case, that there had been no agreement and that it would otherwise not be possible for solicitors to act for poor people in substandard housing where there was no legal aid available under the Act.
Held The appeal was allowed.
1. If an officious bystander had been asked if the tenant would have had to pay the solicitors’ costs if the prosecution had failed, the answer would have been “No”.
2. The question none the less remained what solicitors should do where they had a tenant with a strong case and a very powerful landlord.
3. In order to fulfil their professional responsibility which they owed to their client, solicitors had to state that there was a strong case which the client could expect to win, but that there was nothing certain in litigation and they would then have to look to their client for costs.
4. In the circumstances of the case, the solicitors knew that the respondent was on income support and in advising her they never told her that they would look to her for costs and she, in turn, never expected that she might have to pay out of her own pocket. Therefore, there must have been an understanding amounting to a contract in law that they would not expect the respondent to pay if she lost the prosecution.
5. Solicitors were under a duty to follow the proper procedure and to inform clients of their liability to pay their fees. It was open to them not to enforce their costs if the client lost.
Duncan Matheson QC (instructed by Maurice Putsman & Co, of Birmingham) appeared for the board; Elizabeth Norman (instructed by Michael Arnold, of Oldbury) appeared for the solicitors.
