Recovering legal costs under CPR (Campbell v Campbell)

Recovering legal costs under CPR (Campbell v Campbell)

8705469_xlSimon Beasley, senior associate, Griffin Law examines the case of Campbell v Campbell in which the High Court was required to consider the extent to which the CPR permitted a litigant in person (LiP) to recover legal costs incurred for advice and services outside the jurisdiction.

What was the background to this case?

The defendant had made an application for permission to appeal out of time, against previous orders made by a Deputy and Chief Master in this matter. This was refused and the defendant was ordered to pay the claimant’s costs of the application.

What were the principal issues?

During summary assessment of these costs, an issue arose regarding the recoverability of certain heads of costs by the claimant, at that time a LiP.

The LiP had received advice and assistance from their solicitors, a Jersey law firm, in relation to the litigation in England. The lawyers were practicing solicitors in England and Wales. The principal issue was the extent to which the CPR permitted a LiP to recover legal costs incurred for advice taken from solicitors only qualified outside the jurisdiction.

What did the court hold and what is the meaning of the order in respect of costs?

David Foxton QC (sitting as a deputy judge of the High Court), after receiving written submissions from the parties on these cost issues held that the claimant could not recover the costs of their Jersey solicitors’ work as they were services provided by a lawyer qualified in another jurisdiction and so did not constitute ‘legal services’ under CPR 48.6(3)(b). The result of this decision was that these costs would be no more recoverable, in English proceedings, than those provided by a lay (legally unqualified) individual.

A contrast was identified between such costs and the ‘unbundling’ of legal services that Lord Woolf contemplated in the Access to Justice—Final Report (1999), which focused on situations whereby a barrister or solicitor provided legal services to a party regarding only certain aspects, as opposed to the entirety, of a matter.

Due to the above, the further pleaded issues of such costs being ‘reasonably incurred and reasonable and proportionate in amount’ did not therefore arise.

However, helpful further guidance was given in that the Judge considered the firm had [in summary] a ‘familiarity with the background issues to this litigation’ the work was of a kind to be ‘expected [of] an English solicitor with conduct of litigation’ and there was no assertion that the time or costs claimed were ‘themselves unreasonable or disproportionate’.

There was no issue as to the fees of Mr Machell QC, who had represented the claimant via the Bar Public Access Scheme. This permits the direct instruction of a barrister, by a client, as opposed to by a solicitor acting upon their behalf—being a disbursement and claimable as such under CPR 46.5(3)(a)(ii).

This was a point addressed in the previous case of Agassi v Robinson (Inspector of Taxes)(Costs) [2005] EWCA Civ 1507, [2006] 1 All ER 900, although at that time the points relevant to such were embodied within CPR 48.6(3) and concerned the cost of advice given by specialist tax advisors.

What are the possible effects of this case on LiPs?

Helpfully, this case has directly addressed the position of the recoverability of legal costs, incurred by a LiP, for advice and services provided by those qualified outside of the jurisdiction of England and Wales. As such this will have significant effect in respect of future LiPs who are attempting to obtain assistance from sources that are not ‘disbursements’ under CPR 46.5(3)(a)(ii) or ‘legal services’ under CPR 46.5(3)(b).

Further Guidance

Lexis®PSL Arbitration subscribers enjoy a wealth of expert analysis. Click here for a free trial to access if you are not a PSL subscriber.

PSL practical point: There is a later decision in this same case, in which Chief Master Marsh gives judicial recognition to the reasoning of David Foxton QC and does not interfere with it (see Campbell v Campbell [2016] EWHC 2237 (Ch)).

Interviewed by Bridget O’Connell.The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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