Costs News

01 February 2018
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CA upholds ruling that LiP is unable to recover costs of Jersey lawyers

The Court of Appeal has upheld a decision that services provided by a lawyer qualified outside England and Wales do not constitute “legal services” for the purposes of a costs claim by a litigant in person (LiP).

Campbell v Campbell related to an order for costs after the defendant’s application for permission to appeal out of time against orders by two masters was rejected.

An issue of principle arose during the summary assessment as to whether costs incurred by the claimant, as a litigant in person, in respect of a Jersey firm of lawyers, Dickinson Gleeson, were recoverable.

The focus was on CPR 46.5(3)(b) and the claimant’s argument that the fees constituted “payments reasonably made by the litigant for legal services relating to the conduct of the proceedings”.

David Foxton QC, sitting as a deputy judge of the High Court, said there was no material difference between the position of a lawyer qualified in another jurisdiction and the specialist tax advisers considered in the Agassi case.

“In each case, the provider of those services no doubt has valuable knowledge and expertise to provide, but in neither case are they authorised to conduct litigation, nor are they subject to the wasted costs jurisdiction of the court. While Dickinson Gleeson are qualified by reference to the law and procedure of their own jurisdiction, their position so far as English proceedings are concerned is that of lay persons.”

On appeal, Lord Justice Newey ruled: “Although CPR 46.5(3)(b) does not state so expressly, it can be seen from the United Building and Plumbing Contractors and Agassi cases that ‘legal services’ must be ‘provided by or under supervision of a lawyer’. It is also, I think, implicit in the provision that the lawyer must be someone who can be expected to be competent to supply services ‘relating to the conduct of the proceedings’, which will be proceedings in this jurisdiction. A lawyer qualified in England and Wales will be such a person, but a foreign lawyer will not.”

He added that this conclusion made sense in public policy terms. “I agree with [defendant counsel Andrew] Twigger's submission that the ‘true policy consideration in the interpretation of these rules is that those who provide advice and assistance in connection with litigation in this jurisdiction should be properly qualified, regulated and insured in this jurisdiction’.”

John Machell QC (instructed under the Bar Public Access Scheme) acted for the claimant/appellant. Andrew Twigger QC and Narinder Jhittay (instructed by Taylor Wessing) for the defendant/respondent.

 

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