Key Facts
- •Damian Delia Francois (appellant) sought to recover legal fees from London Borough of Waltham Forest (respondent) after a successful judicial review.
- •The fees were for Mr. Mukulu, a barrister who lacked a valid practicing certificate during part of the work.
- •The Costs Officer initially allowed the fees, but Master Howarth later disallowed the fees incurred during the period without a practicing certificate.
- •The appellant appealed Master Howarth's decision.
- •The central issue was whether fees paid to a barrister without a practicing certificate are recoverable under CPR 46.5(3)(b).
Legal Principles
A litigant in person can recover reasonably made payments for legal services relating to the conduct of proceedings (CPR 46.5(3)(b)).
CPR r 46.5(3)(b)
"Legal services" under CPR 46.5(3)(b) must be provided by or under the supervision of a lawyer who is competent to provide services relating to the conduct of proceedings in this jurisdiction.
Campbell v Campbell [2018] EWCA Civ 80
Competence for the purposes of CPR 46.5(3)(b) is linked to professional and regulatory standing, not individual skills and experience.
Campbell v Campbell [2018] EWCA Civ 80
A barrister without a practicing certificate is not entitled to provide legal services as a barrister.
BSB Guidance
The policy behind CPR 46.5(3)(b) is to allow unbundling of legal services, not to expand the classes of those whose fees are recoverable. Those providing assistance must be properly qualified, regulated and insured.
Campbell v Campbell [2018] EWCA Civ 80
Outcomes
The appeal was dismissed.
The court held that fees paid to an unregistered barrister (one without a practicing certificate) are not recoverable under CPR 46.5(3)(b). This is because such a barrister is not considered to be providing "legal services" within the meaning of the rule, given their lack of proper professional standing, regulation and insurance.
Master Howarth's decision to limit recovery of Mr. Mukulu's fees to those incurred when he held a practicing certificate was upheld.
The appellant had not paid Mr. Mukulu, and there were serious questions about whether those fees were even payable given Mr. Mukulu's lack of a practicing certificate and his actions of holding himself out as a barrister. The court also emphasized the policy considerations behind CPR 46.5(3)(b), focusing on the need for proper qualification, regulation, and insurance for those providing legal services.
The respondent’s costs order of £500 was upheld.
While the respondent breached CPR 44 PD 9.5 by not filing a costs schedule, the court found the order fair considering the circumstances and the respondent’s self-imposed cap on their costs claim.