Landlord and tenant dispute – Assisted person – Costs – Legal aid certificates discharged and reinstated – Appellant awarded part of legal costs – Appellant acting in person while seeking new solicitor under legal aid certificate – Whether appellant “legally assisted” person – Whether respondents liable for full costs – Appeal dismissed
The appellant was the long leaseholder of a flat of which the respondents were at all relevant times the landlords. In 1993, the appellant claimed damages for breach of repairing covenant, and the respondents claimed forfeiture based on alleged failures to pay the service charge and ground rent. A trial in the county court led to judgments, in 2002, relating to repairing and subsidence, credit for decoration works and forfeiture. In the Court of Appeal, in 2003, the appellant was partially successful, obtaining an order for the payment by the respondents of 75% of her costs.
The appellant obtained public funding for her litigation by means of three overlapping legal aid certificates over a 12-year period. During that period, the certificates were granted, discharged and reinstated on a number of occasions. The appellant’s legal representation also underwent changes; at one point, she informed the respondents that she was representing herself. The costs judge held that for any period during which she had acted for herself, the appellant had not been a legally assisted person within the meaning of section 17 of the Legal Aid Act 1988 and was not entitled to her costs.
The appellant appealed, contending that ,during the periods she had been without legal representation, she had taken no active steps but had merely been holding the fort until she could find another solicitor. She contended that where a legal aid certificate was discharged, but later reinstated rather than replaced, the effect for all purposes was as though it had never been discharged and she was therefore entitled to her full costs.
Held: The appeal was dismissed.
When a legally assisted person’s solicitor had ceased to act without another firm having been retained under a legal aid certificate, and that fact had been communicated to the opposing party, from the moment of that communication the litigant ceased to be a legally assisted person.
When she was acting in person, the appellant was not a legally assisted person, even though she was actively seeking to reinstate the provision of legal representation under the 1988 Act in connection with her pending proceedings. It was irrelevant that, after acting as a litigant in person on two occasions, she later obtained the services of a new firm of solicitors under her reinstated certificates. The definition in section 2(11) of the 1988 Act required enquiry as to whether a person was receiving advice under the Act. A litigant in person could not receive legal advice in that sense: Burridge v Stafford [2000] 1 WLR 927 applied.
Moreover, the appellant was not a legally assisted person for the purposes of section 17 during any period after a solicitor had ceased to act for her and had communicated that fact to the respondents’ solicitor. This was so even if a period of time elapsed before she took active steps as a litigant in person. If and to the extent that the respondents incurred costs during such a period, those costs would have been incurred while the appellant was a legally assisted person. It would be wrong to treat the state of mind of the litigant acting in person as being determinative of the question as to whether she had at that stage ceased to be a legally assisted person, so as to distinguish between litigants who decided to act in person permanently and those, such as the appellant, who acted in person only while seeking to obtain alternative legal representation. An investigation of the litigant’s motivation would be too subjective, and would have, prima facie, nothing to do with the objective question stated in section 2(11) of the Act, namely whether the litigant was in receipt, under the Act, of legal advice.
Furthermore, the reinstatement of a legal aid certificate for the purposes of enabling a new solicitor to act did not have the effect, retrospectively, that the litigant would be deemed to have been a legally assisted person for the purposes of section 17 during the period between the discharge and the reinstatement or, more importantly, during any period between the termination of the old firm’s retainer and the start of that of the new firm.
Per curiam: The question of whether, at any particular time, a litigant was a legally assisted person was of importance for the other litigants in the case because of the consequences arising under sections 17 and 18 of the 1988 Act. Other litigants, once informed that the previously legally assisted person had ceased to receive legal advice and representation, should not be kept in suspense until the outcome of any investigation as to their opponent’s motivation, or the outcome of any subsequent application to reinstate the legal aid certificate in question.
The appellant appeared in person; Howard Lederman (instructed by Bell Dening, of Ramsgate) appeared for the respondents.
Eileen O’Grady, barrister
