‘Successful’ legally aided party loses bid for costs

The Court of Appeal has refused to make a costs order in favour of a legally aided party who superficially won her case after being accused of contempt for failing to comply with a court order.

Lord Justice Irwin said he came to the conclusion despite recognising the importance of costs orders being made in favour of successful legally aided parties.

In King’s Lynn and West Norfolk Council v Bunning [2016] EWCA Civ 1037, the council had obtained a High Court order restricting the use of a plot of land and forbidding the siting of mobile homes and caravans on the land and the use of the land for residential development, including the occupation of caravans and mobile homes.

Michelle Bunning and a man were found to be using the land in contravention of the order, and the council issued an application notice for contempt proceedings, although by that point Ms Bunning had moved out. At a hearing three months later, when Ms Bunning had obtained legal aid and the council was only seeking a declaration that she had been in breach of the order, His Honour Judge Ralls QC said there was no public interest in continuing the proceedings, “particularly in terms of the public expense”. The evidence indicated she was unlikely to move back.

The judge said: “I can understand why it is appropriate that she should have [public] funding in a case like this where her liberty is at risk, but as things worked out on the facts of this case I can’t see that there is any point in the matter continuing… I make no order for costs for the reasons I have already adumbrated, namely that there is prima facie evidence against her.”

On appeal, the appellant argued that she was the successful party – because the outcome was the result she sought – and costs should follow the event. She also submitted that it was wrong in principle to pay regard to the fact that she was legally aided.

Irwin LJ said he accepted that it was important for costs orders to be made in favour of successful legally aided parties. “We were told that such an order makes a very considerable difference to those acting, who receive a very much reduced rate if paid by the Legal Aid Agency rather than the unsuccessful party.

“It will also be evident that if successful legally aided parties do not obtain costs orders when they should, a false picture will emerge as to the care the agency takes of public money: legal aid litigation will appear to be less effective and the judgements of the agency less well-considered than they should.

“Bearing those points in mind, however, it is necessary to understand what HHJ Ralls QC was really doing in the course of his conclusions in this case. He was of the view that there was a proper basis (‘a prima facie case’) for contempt in relation to the appellant. But he was also of the view that the declaration sought by the respondent was of no practical value or utility…

“The judge clearly had in mind the extended litigation history in this case. He was alive to the fact that an adverse costs order would mean he would have to try out all the issues. It was in those circumstances that he brought the matter to the substantive conclusion that he did, an outcome accepted by the respondent and welcomed by the appellant. In my judgment, he was right in that approach. It was relevant to the question of the continued utility of the litigation that both parties were publicly funded. The public would be astonished if it were to be suggested otherwise.”

He described the submission that the appellant was the successful party as “rather simplistic”. He continued: “She had the outcome she desired, but if the matter had proceeded as it might, she was at real risk of being the losing party. The respondent council had produced sufficient evidence to deal with the contested issue of service, and to establish knowledge of the order. Occupation of the premises during the relevant period was admitted.

“In those circumstances, I regard the judge’s order as a proper exercise of his undoubted discretion. For those reasons, I would dismiss the appeal.” Lord Justice Kitchen agreed.


This post was posted in ACL e-Bulletin

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Post type
Costs News
Published date
31 Oct 2016

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