Frances Cooke & Ors v Woodchurch House Limited
[2023] EWHC 3318 (SCCO)
MBR Acres Limited & Ors v Gillian Frances McGivern
18 July 2024
[2024] EWHC 1869 (SCCO)
Senior Courts Costs Office
A solicitor won a case and was supposed to get her costs paid by the other side. Because she had legal aid, the judge had to decide if she could get the full amount she was billed or only the amount covered by legal aid. The judge said she could only get the legal aid amount, and the extra costs she tried to get were disallowed.
Key Facts
- •Defendant, a solicitor, was awarded indemnity costs after a contempt of court application against her was dismissed as 'totally without merit'.
- •Defendant's solicitors' bill exceeded her £75,000 legal aid limit.
- •The bill claimed costs at private client rates, not legal aid rates, based on a clause in the retainer.
- •Key issues: whether costs are limited to legal aid rates, whether the private retainer is valid, and recoverability of counsel fees.
Legal Principles
Contempt proceedings are 'criminal proceedings' under LASPO, even if civil in nature.
LASPO 2012, s.14(g)/(h); Liverpool Victoria v. Khan; Kings-Lynn & West Norfolk Council v. Bunning
Indemnity principle applies in legal aid cases; costs recoverable cannot exceed legal aid entitlement unless specifically authorized.
LASPO 2012, s.28; Civil Legal Aid (Costs) Regulations 2013, reg. 21; Merrick v. The Law Society
Legal aid rates are fixed and cannot be topped up; private retainers aiming to circumvent this are unlawful.
Criminal Legal Aid (Remuneration) Regulations 2013, reg. 8(2); LASPO 2012, s.28
Instruction of counsel outside legal aid requires express authorization; reasonableness of counsel's fees is assessed.
Standard Crime Contract, para. 8.41-8.43
Outcomes
Defendant's solicitors' costs are limited to legal aid rates.
The private retainer is considered an attempt to unlawfully 'top up' legal aid costs, and the indemnity principle limits recoverable costs to the legal aid entitlement.
Fees for Mr. Underwood KC are not recoverable.
Instruction of leading counsel was not authorized under legal aid and was deemed unreasonable given the nature of the case.
Junior counsel's fees may be recoverable, subject to legal aid rates and scrutiny of solicitors' fees.
Subject to the limitations of the legal aid framework, junior counsel fees may be recoverable at the prescribed rates.