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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Burrows (t/a David Burrows), R (on the application of) v Legal Services Commission [2001] EWCA Civ 205 (12 February 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/205.html Cite as: [2001] Fam Law 503, [2001] 2 FLR 998, [2001] EWCA Civ 205, [2001] 2 FCR 324

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London WC2 Monday, 12th February 2001

Monday, 12th February 2001

1. THE MASTER OF THE ROLLS: Lord Justice Dyson will give the first judgment.
2. LORD JUSTICE DYSON: The central point that arises on this appeal is what is meant by the word "limitations" in section 15(4) of the Legal Aid Act 1988 ("the 1988 Act"). The issue is whether it empowers the Legal Aid Board ("the Board") to grant a legal aid certificate subject to a costs limitation, that is a term limiting the costs that are recoverable under the certificate to a predetermined sum.
3. The appellant is a solicitor. He was instructed to act for the mother of a child who was the subject of an application by a local authority for a care order under section 31 of the Children Act 1989. On 15th March 1999 a legal aid certificate was issued by the Board to the mother. The certificate purported to impose a restriction on the amount of legal aid available up to £5,000.
4. The appellant had expected the hearing of the application to last no more than a day. In the event it lasted three days and the costs claimed by the appellant exceeded £5,000. He did not apply for an amendment to the costs limitation. On 30th November the Board refused to pay him more than £5,000. He applied for judicial review of this decision of the Board on the grounds that it had no power to grant legal aid certificates subject to costs limitations. Burnton J dismissed his application holding that upon its true construction section 15(4) did authorise the imposition of costs limitations.
5. It is well known that the problem of the increasing costs of the legal aid system has exercised governments for some time. In May 1995 the Lord Chancellor issued a consultation paper entitled "Legal Aid - Targeting Need". Among the key objectives of the consultation paper was the need "to stem the rapid increase in expenditure on legal aid through the introduction of predetermined budgets for criminal, family and civil non-family legal aid".
6. The Board had already started to consider the implementation of the policies set out by the Lord Chancellor. It decided to impose financial and scope limitations on all legal aid certificates. It consulted the Law Society and the Bar Council, and in the August 1997 edition of FOCUS publicised its intention of introducing costs limitations in all certificates. The note for Guidance 9 in the Legal Aid Handbook for 1989/99 (published in September 1998) stated that the legal aid certificate would "impose both scope and financial limitations on the work to be done under it".
7. Initially, these financial limits were not reflected in any delegated legislation. However, on 6th May 1999 there came into force the Civil Legal Aid (General)(Amendment) Regulations 1999. These did expressly refer to limitations on certificates as to "the maximum sum payable". The present legal aid regime is the subject of the Access to Justice Act 1999 and the Funding Code made under it. This deals expressly with financial limitations. But the present case is concerned with the 1988 Act.
8. On behalf of the appellant, Mr Spon-Smith makes two submissions. The first (his wide point) is that the costs limitation was ultra vires the Board since on its true construction the word "limitations" in section 15(4) does not include financial limitations. The second submission is that, even if section 15(4) gives a general power to issue legal aid certificates subject to costs limitations, that power cannot be rationally exercised in relation to public law cases under the Children Act 1989. He referred to this as his "narrow point".

The wide point.

9. I shall start with section 15 of the 1988 Act which deals with the availability of and payment for representation under Part IV of the Act. Section 15(4) provides:

"Representation under this Part may be granted by the Board with or without limitations and may be amended, withdrawn or revoked."

10. "Representation" is defined in section 2(4) in these terms:

"'Representation' means representation for the purposes of proceedings and it includes -

(a) all such assistance as is usually given by a legal representative in the steps preliminary or incidental to any proceedings;

(b) all such assistance as is usually so given in civil proceedings in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings;"

11. (c) I need not read.
12. "Limitation" is an ordinary English word. In my view, as a matter of ordinary language and without regard to the statutory context, the word "limitations" in section 15(4) is wide enough to encompass a financial limitation as well as a "scope limitation". As Burnton J said:

"A limitation on representation to a specified cost is a limitation on representation. A limit on representation to the first day of a trial would clearly be a limitation on representation. So would a limitation on representation to a specified cost."

13. In my judgment, it is necessary to examine the statutory context to see whether there are any indications that Parliament intended that the word "limitations" in section 15(4) should bear a more restrictive meaning than its ordinary meaning.
14. We were referred to section 4 of the 1988 Act which sets out the powers of the Board and in particular section 4(6) which provides:

"Advice, assistance and representation provided by the Board under this Part may be granted with or without limitations and may be amended, withdrawn or revoked."

Part III of the 1998 Act deals with Advice and Assistance. Section 9 in Part III is concerned with the availability of and payment for advice and assistance. Section 10 deals with the financial limit on prospective costs of advice or assistance. Section 10(1) provides:

"Where at any time (whether before or after the advice or assistance has begun to be given) it appears to a legal representative that the cost of giving advice or assistance to a person under this Part is likely to exceed the prescribed limit--

(a) the legal representative shall determine to what extent that advice or assistance can be given without exceeding that limit; and

(b) shall not give it (nor, as the case may be, instruct an additional legal representative to give it) so as to exceed that limit except with the approval of the Board.

(2) Approval under subsection (1)(b) above may be given with or without limitations and may be amended, withdrawn or revoked."

Part IV deals with legal aid for civil proceedings including care proceedings under the Children Act 1989.

15. Section 34(1) empowers the Lord Chancellor to:

"... make such regulations as appear to him necessary or desirable for giving effect to this Act or for preventing abuses of it."

16. Subsection (2) provides:

"Without prejudice to the generality of subsection (1) above, any such regulations may--

(e) make provision for the remuneration and payment of the expenses of legal representatives."

17. Subsection (7) provides:

"Regulations made for the purposes mentioned in subsection (2)(e) above may include provisions --

(a) imposing conditions for the allowance of remuneration and expenses;"

18. Subsection (9) provides:

"The Lord Chancellor, in making regulations for the purposes mentioned in subsection (2)(e) above as respects any description of legal aid work, shall have regard, among the matters which are relevant, to..."

19. And then there are set out in paragraphs (a) to (f) various matters to which he shall have regard.
20. The regulations made under section 34 include the Civil Legal Aid (General) Regulations 1989. Although it is clear that these regulations cannot be relied upon to interpret the provisions of the 1988 Act, our attention was drawn to regulations 46, 48 and 51. Regulation 46 deals with the scope of certificates and provides that:

"A certificate may be issued in respect of the whole or part of proceedings and may be extended to cover appellate proceedings other than those mentioned in paragraph (2)."

21. Regulation 48 gives the power to issue a legal aid certificate restricting the costs allowable to a distant solicitor.
22. Regulation 51 gives the Area Director the power to amend certificates in the various respects there described.
23. I can find nothing in the other provisions of the 1988 Act, to which I have just referred, which indicates that Parliament intended that the word "limitations" in section 15(4) should be given anything other than its ordinary natural meaning. Section 4(6) does not help since it merely uses the phrase "with or without limitations" in a way which does not indicate any intention to give a special meaning to it.
24. At one stage I thought that it might have been arguable that section 34 and the provisions to which I have referred indicated that it was intended by Parliament that all aspects of the regulation of the remuneration of legal representatives was to be the subject of regulations made by the Lord Chancellor. Mr Spon-Smith did not, however, advance such an argument. It is true that the provisions of section 34 are wide enough to empower the Lord Chancellor to make regulations authorising the Board to restrict the costs of representation, and Regulation 48 seems to be the only example of such a regulation. But in my view the fact that section 34 gave the Lord Chancellor such a power, amongst others, does not permit the inference that the Board was not empowered to impose costs limitations under section 15(4). The language of section 34 simply does not justify such an inference.
25. Do sections 10(1) and (2) shed any light on the problem? Mr Spon-Smith rightly, in my view, concedes that section 10(2) permits the Board to approve the prescribed limit for the cost of giving advice or assistance to a person under Part III to be exceeded and to impose financial limits on that approval. In other words, although the language of section 10(2) is quite general, he accepts that the unqualified words "with or without limitations" include financial limitations. The judge thought that this supported the view that the words "with or without limitations" where they appear in section 15(4) similarly include financial limitations. Mr Spon-Smith submits that this was impermissible reasoning because the context of section 10 is financial limits, whereas section 15 is concerned with the availability of and payment for representation, a broader context. In my view the judge was right. Far from there being any indication to be derived from the other parts of the 1988 Act that the word "limitations", where it appears in section 15(4) was, to be given a restrictive meaning, the only provision where the same word is used in a similar context and in which the scope of its meaning is clear, supports the unrestricted and ordinary meaning of the word. I can find no reason not to give the word "limitations" in section 15(4) its ordinary meaning. Mr Spon-Smith has not advanced any argument that such a meaning produces strange or unjust or unreasonable results. A legal representative who finds himself or herself in the position in which the appellant found himself in this case can seek to amend the certificate by obtaining approval for the financial limit to be raised, and he can appeal against an adverse decision of the Board to the legal aid area committee. I would uphold the judge on the wide ground.

The narrow ground.

26. The present case is what is commonly called a "non-merits tested case", that is to say one to which section 15(3C) of the 1988 Act applied. That subsection provided that:

"Subject to subsection (3A) but regardless of subsections (2) or (3), representation under this Part must be granted to the child in respect of whom the application is made, to any parent of such a child and to any person with parental responsibility for him within the meaning of the 1989 Act to cover proceedings relating to an application for the following orders under that Act--

(a) an order under section 31 (a care or supervision order)."

27. As Mr Spon-Smith points out, what appears in that subsection is reinforced by regulation 28(2) of the 1989 Regulations which provides that:

"Where the application [for legal aid] relates to proceedings to which section 15(3B), (3C) or (3E) of the Act apply, provided that the Area Director is satisfied that it does so relate and subject to regulation 27 (where applicable) he shall grant the application."

28. Mr Spon-Smith submits that in cases where the grant of representation is mandatory, notwithstanding the reasonableness or otherwise of the applicant's position or the merits of his case, it must follow that there is no scope for the imposition of conditions or limitations. Otherwise, he submits, the absurd situation would arise in which a parent is granted legal aid in care proceedings subject to a costs limitation, the costs limit is reached, the Board refuses to vary or remove it, and the parent then applies for a new certificate which has to be granted.
29. He argues that it would be irrational to impose any limitation on legal aid in proceedings to which section 15(3C) applies, since to do so would be to reintroduce a merits test which Parliament made clear was not to apply in cases of this kind. The Board could in effect terminate legal aid before the end of the proceedings, the very thing that it is clear that Parliament intended should not happen.
30. The position in section 15(3C) cases is to be contrasted with that which governs the grant of civil legal aid in other litigation, where representation may be refused if it appears to the Board that it is unreasonable that a person should be granted representation. (See section 15(3).
31. As I understand his argument, Mr Spon-Smith does not contend that, as a matter of construction, the Board has no power to impose financial limits in section 15(3C) cases. He does not say that even if, as I held, section 15(4) gives a general power to impose financial limits, the language of the statute prohibits the exercise of that power in section 15(3C) cases. He submits that, in the light of section 15(3C) and the purpose that is manifested by that subsection, it would be irrational ever to impose a financial limit in such cases. He does not rely on anything peculiar to the facts of this case to justify the conclusion that the exercise of the power in the present case was irrational. I cannot accept these submissions. The imposition of financial limits in advance of expenditure being incurred provides a salutary discipline to the legal profession. It is a valuable tool in the hands of those who administer public funds to ensure that no more than reasonable and proportionate costs are so expended in conducting publicly-funded civil litigation. It is true that legal representatives who conduct such litigation know that they face the ultimate sanction of a taxation or assessment of their costs and that they will not be awarded more than reasonable costs. But taxations or assessments of costs are themselves sometimes lengthy and expensive and their outcome is often difficult to predict. The imposition of a costs limit in advance avoids some of this uncertainty and provides a useful incentive for the legal representative to avoid unreasonable expenditure of costs. There is nothing unreasonable or unjust about this. As I have already said, a legal representative can seek an amendment to the certificate to raise the financial limit, and if he is dissatisfied can appeal the Board's decision.
32. As Mr Jonathan Harvie QC points out, the Board has great experience and knows what is the reasonable cost of run-of-the-mill cases of different types. Moreover, the legal representative has every incentive to keep an eye on the level of costs before he or she expends them. It will normally be apparent that the costs limit is likely to be exceeded before it has actually been exceeded. Accordingly it should only be in a rare case that an application to amend a certificate cannot be made until after the costs limit has been exceeded. If that does occur, then it may be that the legal representative will feel obliged to continue to act for the party pro bono until the outcome of the application to amend is known. I accept that there may occasionally be difficult cases where the limit has been exceeded, and the Board and appellate body refuse to amend the certificate. But whatever the position might be in those cases, that cannot justify the conclusion that Mr Spon-Smith invites this Court to reach, namely that, in all cases to which section 15(3C) applies, it is irrational to impose financial limits.
33. I would, therefore, dismiss this appeal on the narrow ground as well.
34. THE MASTER OF THE ROLLS: I agree.
35. LORD JUSTICE KENNEDY: I also agree.
(Appeal dismissed; costs to follow the event)