Summary

Services provided by a lawyer qualified in another jurisdiction did not constitute "legal services" for the purposes of CPR r.46.5(3)(b). The cost of those services was therefore not recoverable by a litigant in person as payments reasonably made for legal services relating to the conduct of the proceedings.

Facts

The court had to determine whether costs incurred by a Jersey firm of lawyers were recoverable by a litigant in person in English proceedings.

A costs order was made in favour of the claimant following unsuccessful applications by the defendant for permission to appeal out of time. The claimant was involved in related litigation in Jersey against the same defendant. Although he was acting as a litigant in person in the instant proceedings, he had instructed counsel under the Bar Public Access Scheme and certain of the work done for the trial and for the instant hearing had been carried out by a Jersey firm of lawyers under his instructions. One of the partners in the firm, who practised as an Advocate of the Royal Court of Jersey, had carried out work which included reviewing and advising on Scott schedules, providing assistance with draft correspondence, reviewing disclosure and assisting with the drafting of witness statements and the preparation of exhibits. A total of £3,030 was claimed in respect of his costs. The claimant maintained that the firm's costs were recoverable under CPR r.46.5(3)(b) as payments reasonably made by the litigant for legal services relating to the conduct of the proceedings.

The claimant submitted that there was no requirement that the services be provided by an English qualified solicitor or barrister in order to fall within r.46.5(3)(b).

Held

(1) Services provided by a lawyer qualified in another jurisdiction did not constitute "legal services" for the purposes of r.46.5(3)(b). There was no material difference between the position of a lawyer qualified in another jurisdiction and the specialist tax advisers in Agassi v Robinson (Inspector of Taxes) (Costs) [2005] EWCA Civ 1507, [2006] 1 W.L.R. 2126, in which it was held that the rule contemplated allowing as costs only those categories of disbursements which would normally have been made by a legal representative, Agassi followed. In both cases, the service provider had valuable knowledge and expertise, but in neither case were they authorised to conduct litigation; nor were they subject to the wasted costs jurisdiction of the court. While the Jersey lawyers in the instant case were qualified by reference to the law and procedure of their own jurisdiction, their position was that of lay persons as far as English proceedings were concerned. Where a lay person such as a McKenzie friend provided services of a kind which a lawyer would provide, their fees for doing so were not ordinarily recoverable in litigation from the opposing party, Practice Note (Sen Cts: McKenzie Friends: Civil and Family Courts) [2010] 1 W.L.R. 1881 followed. The use of lawyers qualified in another jurisdiction to provide legal services in relation to the conduct of English litigation was a long way from the "unbundling" of legal services contemplated by Woolf LJ in Access to Justice - Final Report (1999) Section II Ch 7 para.45, which concerned a solicitor or barrister providing legal services in relation to aspects of litigation without being instructed for the conduct of the litigation as a whole (see paras 15, 17 of judgment).

(2) Had it been necessary to determine whether the costs of the Jersey law firm were reasonably incurred and proportionate, it would have been held that they were. It was clear that the members of that firm had an extensive familiarity with the background issues to the litigation and the work for which the costs were claimed was of a kind which would have been expected of an English solicitor with conduct of litigation to perform. The review of the documentation which had been carried out did not duplicate the work done by counsel and there was no suggestion that the rates claimed were themselves unreasonable or disproportionate (para.18).

Judgment accordingly