COSTS PROTECTION : s17 LEGAL AID ACT 1988 : LEGAL AID
The appellant (A) appealed against a Costs Order which arose from litigation with the Respondents (R). A had obtained public funding for her litigation by means of several overlapping public funding certificates. Throughout the period of litigation she had several different firms of solicitors. At various times her public funding certificates were discharged and then reinstated when she retained new solicitors. She acted in person during the periods when she was without legal representation.
In assessing costs at the end of the litigation the Master Campbell found that for any dates upon which A was acting for herself she did not have costs protection.
A submitted that she had been “a legally assisted party” within the meaning of the Legal Aid Act 1988 s.17 for the whole period of litigation, and that during periods without legal representation she had taken no active steps herself.
Mr Justice Briggs found on appeal that…
- Following the plain meaning of s.2(11), during any period when Awas acting in person she was not a legally assisted person, even though she was actively seeking to reinstate the provision to her of legal advice, assistance and representation under the Act in connection with her pending proceedings, Burridge v Stafford (2000) 1 WLR 927 CA (Civ Div) applied.
- A was not a legally assisted party for the purposes of s.17 during any period after a firm of solicitors had ceased to act for her and had communicated that fact to R’s solicitors, even if a period of time then elapsed before M took any active steps as a litigant in person.
- It would be wrong to treat the state of mind of the litigant acting in person as determinative of the question of whether she had at that stage ceased to be a legally assisted person because that was subjective and uncertain, and had nothing to do with the objective question in s.2(11).
- The reinstatement of a public funding certificate for the purposes of enabling new solicitors to act after the discharge of that certificate when previous solicitors ceased to act did not have the effect retrospectively that the litigant was deemed to have been a legally assisted party for the purposes of s.17 during the period between the discharge and the reinstatement of the certificates, or during any period between the termination of the old firm’s retainer and the commencement of the new firm’s retainer.
- The question whether at any particular time a litigant was a legally assisted person was of real importance for the other litigants in the case for consequences arising under s.17 and s.18, Burridge applied. Therefore, it could not be right that the other litigants, once informed that the previously legally assisted person had ceased to be in receipt of legal advice and representation, were nonetheless kept in suspense until the outcome of any investigation as to his opponent’s motivation, or the outcome of any subsequent application to reinstate the public funding certificate in question.
- When a legally assisted person’s solicitors had ceased to act, without another firm being retained under a public funding certificate and that fact had been communicated to the opposing party, then from the moment of that communication the litigant ceased to be a legally assisted person.