Intermittently exposed

Now, this is a bit of an oddity. Mohammadi v Shellpoint Trustees Ltd & Anor [2009] EWHC 1098 (Ch) was an appeal from the Supreme Court Costs Office. It concerned when a person should have the protection from liability for costs under s.17 Legal Aid Act 1988.

Mrs Mohammadi was a leaseholder who had pursued a disrepair claim, beginning in about 1993, reaching trial on disrepair and forfeiture in 2002, at which she was successful and an appeal to the Court of Appeal, at which she was partially successful, with an order for 75% of costs overall.

Mrs Mohammadi, in the course of this litigation, had had no less than three, overlapping, legal aid certificates. Two of these were in issue:

Certificate W
This was granted on 12th September 1990, discharged on 5th November 1996, reinstated on 16th December 1996, discharged again on 23rd March 2001, reinstated again on 1st October 2001 and finally discharged on 24th July 2002.

Certificate E
This was granted on 20th October 1993, discharged on 19th June 2001, reinstated on 1st October 2001 and finally discharged on 24th July 2002.

At this point, those of us dealing with the LSC at present will be scratching our heads. A discharged certificate is ended. ‘Reinstatement’ , let alone twice, a bewildering idea. And indeed, the concept appears to have been alien to the 1989 Regulations involved here as well. But let us press on.

On 14 September 2005, the LSC had written to Mrs M, setting out this history and stating that she was not publicly funded in the periods between discharge and reinstatement. But on 6 July 2007, the LSC wrote:

One other matter needs to be added to the above information – at various times your certificates were discharged and then reinstated. I should point out that the reinstatement of the certificates following a discharge means they were deemed never to have been discharged and as far as costs protection is concerned, you would have been covered for work done within the scope of the certificates from their original issue dates (23/8/1990 and 20/10/1993 respectively) until their final discharge dates (24/7/2002 for A/N/3 and 16/4/2004 for A/N/2).

After the first discharge in Nov 1996, Mrs M’s then solicitors wrote to the other side, saying she was proceeding as a litigant in person. She appeared in person at a hearing. In December 1996, her new solicitor went on the record. In July 1999 there was a change of solicitor, and in November 1999 the other side received notice of amended certificate and change of solicitor.

After the discharge of one certificate in March 2001, Mrs M again acted in person in an application to transfer to the LVT. The other certificate was discharged in June 2001. In October 2001, the other side were served with notice of acting for new solicitors and re-instatement of both certificates. Following a hearing in May 2002, Mrs M discharged those solicitors and again acted in person at a hearing in June. She then instructed new solicitors privately and the certificates were discharged in July 2002.

The issue was whether Mrs M was a ‘legally assisted person’ for the purposes of the Legal Aid Act 1988 in the periods when the certificates were discharged.

Mrs M said that she was.

She was not “acting”, she was simply holding the line until she could find another solicitor. She was certainly not conducting litigation, she was simply appearing at hearings until she could find a new firm of solicitors to take her case, the old ones having been dismissed by her or ceased acting for her for some other reason.

She also relied on the LSC letter of July 2007 as saying she was covered throughout.

The respondents said she wasn’t:

Mrs Mohammadi was only to be regarded as a legally assisted party in the litigation within the meaning of section 17 during such period as she was in receipt of legal advice and assistance from solicitors pursuant to a legal aid certificate, that during periods between the termination of the retainer of one firm and the retainer of another firm she was not therefore a legally assisted party and that, a fortiori, during any part of those periods in which she took active steps in the proceedings as a litigant in person, she cannot have been a legally assisted party.

Held:
There was nothing in the 1989 Civil Legal Aid Regulations about reinstatement or its effects, so these were of no help.

S.2(11) of the 1988 Act defines ‘legally assisted person’ as
Any person who received, under this Act, advice, assistance, mediation or representation and, in relation to proceedings, any reference to an assisted party or an assisted party is to be construed accordingly

Though dates of discharge of certificate, or even solicitors ceasing to act would not be precise indicators of when a person would stop being an assisted party, it is certain that from the date they start to act in person they are not assisted, even if they are actively seeking representation.

Further Mrs M was not an assisted person once a firm of solicitors had informed the other side they had ceased to act. Once another solicitor served notice of acting under a certificate, she was again protected.

when a legally assisted person’s solicitors have ceased to act, without another firm being retained under a legal aid certificate, and that fact has been communicated to the opposing party, then from the moment of that communication the litigant ceases to be a legally assisted person.

‘Reinstatement’ of a certificate did not give retrospective protection for the whole period, whatever the LSC had meant in its letter of July 2007, at least as far as that involved costs protection against the other side.

Mrs M’s intentions during the relevant periods where not relevant. There was also no reason the other side should be in a state of suspense over whether there was protection or not, once they had been told a certificate had been discharged.

Mrs M was therefore liable for the proportion of the respondents’ costs for the relevant periods. The costs judge’s findings upheld, remitted for sorting some details of the relevant bills for the relevant periods.

This is perhaps of historic interest, given the replacement of the 1988 Act, but some of the general points about when a person ceases to be protected will be of continuing significance, going a bit further than Burridge v Stafford [2000] 1 WLR 927.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Disrepair, Housing law - All, Leasehold and shared ownership and tagged , , , , , .

0 Comments

  1. any article 6 issues?

    if she can’t pay costs associated with times when she was a LiP then would she be prevented from bringing any new applications etc until any order for costs was complied with?

    and presumably if she is getting funding she is dirt poor so can’t pay the costs. will this not constitute her being denied access to justice?

  2. Well, the matter is done with – the appeal was from the costs hearing.

    On the second, she proceeded with privately instructed solicitors – so her means are a question. In this case, there would clearly be a set off of costs, certainly against any award of damages to her and presumably if any excess against the 75% costs award to her. So it may well be her own solicitors who end up pursuing her for any gap in costs payment.

    No art 6 point, surely – she has had access to justice. Not to say that costs can’t be and aren’t used as a weapon.

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