Case No: A3/2003/1911
Neutral citation no: [2004] EWCA Civ 266 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Birmingham District Registry
His Honour Judge Norris Q.C. (sitting as a High Court Judge)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 9 March 2004
Before :

LORD JUSTICE PETER GIBSON
LORD JUSTICE JACOB
and 
SIR WILLIAM ALDOUS

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Between :

	HUGHES AND OTHERS (BY THEIR LITIGATION FRIEND)	Respondents	
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	COLIN E. G. RICHARDS (TRADING AS COLIN RICHARDS & CO.)	Appellants	

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(Transcript of the Handed Down Judgment of
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Miss Nicola Shaldon ((instructed by Messrs Knight & Sons of Newcastle-under-Lyme ) for the Respondents Mr. Alexander Hill-Smith instructed by Messrs CMS Cameron McKenna) for the Appellant
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Judgment
Peter Gibson L.J.: 
1.	When A contracts with B for B to perform professional services in connection with the establishment of a trust for the benefit of C and B is negligent in the performance of those services with the result that C receives no benefit from the trust, does A or C have a remedy in tort against B?  That is the primary issue raised on this appeal.  It arises because David and Alison Hughes (“the parents”) by one action and their infant children, Thomas, Stephanie and Charlotte Hughes (“the children”) as the beneficiaries under a trust created by the parents, by another action have sued the Defendant, Colin Richards, alleging negligence by him in connection with the establishment of a trust for the benefit of the children.  Mr. Richards applied for the striking out or dismissal of the children’s claim.  His Honour Judge Norris Q.C. sitting as a High Court judge in the Birmingham District Registry, Chancery Division, on 30 July 2003 refused the application.  Mr. Richards appeals with the permission of the judge.
2.	The application was brought under CPR 3.4, alternatively under Part 24.  Although the latter application permits the court to take account of the evidence which has been filed, the judge said that the evidence had not been relied on before him and he proceeded on the footing that the facts alleged by the children in their pleadings were to be assumed to be true for the purposes of the application.  The hearing before us has proceeded on the same footing.  It is, however, not irrelevant to note that by his Defence Mr. Richards has denied many of the facts relied on by the children for their allegation that he owed them a duty of care in the respects pleaded by them.
3.	I now summarise the facts taken from the Amended Particulars of Claim and the allegations made therein.
The Amended Particulars of Claim
4.	Mr. Richards is a chartered accountant practising in Stratford-upon-Avon.  He held himself out to the parents as experienced at providing tax and investment advice.  The parents owned all the shares in Castle Oils Ltd.  He acted for them on the sale by them of those shares for £550,000 and a royalty agreement under which they were to receive royalty payments totalling £100,000 before deduction of tax.
5.	Mr. Richards was informed by the parents that they wanted to invest the royalty payments to provide for the future funding of their children’s education.  He advised them in April/May 1990 to set up an off-shore trust fund for their children’s education which would enable them to avoid income tax on the royalty payments; the royalty agreement would be assigned to the trust.  He provided them with an explanatory document entitled Information Memorandum on Offshore Trusts.  In reliance on that advice and that document the parents in May 1990 instructed Mr. Richards to proceed with the setting up of the trust.  They retained him to act for them as a tax and investment adviser and as their agent in connection with the investment of the royalty payments, the retainer including (a) the provision of advice on that investment, on the setting up of the trust and on taxation matters arising from that investment, and (b) that he should act with reasonable skill and care (see para. 17 of the Amended Particulars of Claim, the retainer there outlined being called by the judge “the investment retainer”).  Mr. Richards advised the parents that a Swiss trading company, the shares in which would be held by the trust, should be formed.
6.	Mr. Richards advised the parents that they must have no involvement in the direction or administration of the trust.  They further retained him to act, after the setting up of the trust and the Swiss trading company, on their behalf as their agent in all further matters concerning the trust and the company and to provide advice and information with regard to the trust and the company and to provide advice and information with regard to the performance of the trust and the company, it being an implied term that he would act with reasonable skill and care (see para. 19 of the Amended Particulars of Claim, the further retainer therein described being called by the judge “the monitoring retainer”).
7.	The parents signed a Trust Deed on 11 June 1990 and the trust, called the Thedis Trust, was registered in Liechtenstein with a Swiss bank as trustee.  Thomas Hughes, born on 24 August 1987 and adopted by the parents on 12 February 1988, and Stephanie Hughes, born on 17 October 1989, were named in the Trust Deed as beneficiaries of the trust together with any further children of the parents, and any such further child could be added as a beneficiary.  Charlotte Hughes was born on 31 March 1993 and was added as a beneficiary.
8.	The parents transferred £30,000 to the trust in June 1990.  On 12 July 1990 the Swiss trading company, Cedrus AG (“Cedrus”), was formed.  Another Swiss company, Serconta AG, was to manage Cedrus.  On 27 August 1990 the parents agreed with Cedrus to sell to it the benefits of the royalty agreement for £25,000.  That sum, plus £1,000 interest, was paid by Cedrus to the parents in two tranches, one in September 1990 and the other in February 1992.
9.	The parents paid Mr. Richards in respect of his expenses £721.74 and £6,000 in June 1990 and £6,325 in respect of his fees in December 1990.
10.	Two royalty payments, each of £37,500 after deduction of £12,500 tax, were paid to Cedrus in October 1991 and 1992.  The tax was not recovered nor, because of the Double Tax Convention with Switzerland, was it recoverable by Cedrus.
11.	No sums were paid out of the trust to or for the benefit of any of the children.  On 7 June 1999 Cedrus was put into liquidation and on 5 July 1999 the trust was struck off the register.  The £30,000 paid by the parents to the trust and the royalty payments were largely absorbed by the setting up costs, trustees’ and directors’ fees, administrative charges, accounting fees, bank charges and taxation liabilities.
12.	It is alleged in para. 20 of the Amended Particulars of Claim that Mr. Richards assumed a responsibility to the children as beneficiaries or future beneficiaries for the advice given on investment and taxation and the setting up of the trust and Cedrus and the services provided in relation to that setting up and the subsequent monitoring.  It is pleaded in para. 21 that he owed the children a duty of care at common law to use reasonable skill and care in the performance of the investment retainer and the monitoring retainer.  It is said in para. 22 that at all material times the parents, acting on behalf of and for the benefit of the children, acted in reliance on the advice of Mr. Richards in relation to the investment of the royalty payments in the trust and Cedrus, taxation matters and the performance of the trust and Cedrus.
13.	The children allege negligence by Mr. Richards.  In para. 59 of the Amended Particulars of Claim the children set out particulars of negligence and breach of duty.  These, as the judge said, boiled down to two complaints.  The first, relating to the investment retainer, is a complaint that the scheme devised by Mr. Richards was unsuitable because it did not enable recovery by Cedrus of income tax from the royalty payments, and the establishment and running costs of the trust and Cedrus exceeded the income likely to be produced so that capital would be depleted by those costs.  The second, relating to the monitoring retainer, is that Mr. Richards failed to monitor the performance of the trust and Cedrus failed to inform the parents of the erosion of capital by the charges and outgoings and failed to advise them that the trust and Cedrus should be wound up.
14.	It is further alleged in para. 60 of the Amended Particulars of Claim that, had the parents been properly advised, they would have been told of alternative investment schemes, the most appropriate of which would have been investment of the royalty payments in a range of unit trust accumulation units to be held by the parents on trust for the benefit of the children.  Particulars are given of the loss and damage suffered by the children under two heads:
(a)  had the £75,000 royalty payments been invested in 1991 and 1992 in accordance with competent advice, that sum would have increased in value to approximately £220,000 - £225,000 as at 1 January 2002;
(b)  alternatively, had Mr. Richards advised the parents to wind up the trust and/or Cedrus and transfer the assets to the parents for investment for the benefit of the children at any material time prior to the complete loss of the capital, the parents would have accepted that advice and the children would have retained the benefit of such part of the assets as then remained.
The first of those two heads has been referred to as the investment claim, the second as the salvage claim.
15.	The claim by the parents in their action commenced at the same time as the children’s action is in very similar form, though there are some differences in the way the duty of care is said in the parents’ action to be owed to the parents, and the heads of loss and damage suffered by the parents include not only the investment claim and the salvage claim but also three further claims:
(c)  (as an alternative to (a) in para. 14 above) the parents claim the monies paid to the trust and Cedrus (but would give credit for the sums they received totalling £26,000 and for a further sum of £2,848 paid at Mr. Hughes’ request in July 1993 to a named person);
(d)  alternatively, the parents claim £64,000 paid by them in school fees for the children and £145,000 which they say will be paid in future fees; and
(e)  the sums totalling £13,046.74 paid to Mr. Richards by the parents.
16.	In the Defence to the parents’ claim limitation points are taken against the parents.  We are told that they may form the subject of an application for a preliminary issue if the children’s claim is struck out.
The judge’s judgment
17.	The judge in his judgment noted the rival arguments of Mr. Hill-Smith for Mr. Richards in support of the application to strike out the children’s claim or to have it dismissed and Miss Shaldon for the children, resisting the application.  Mr. Hill-Smith relied in particular on two passages in the speech of Lord Goff in White v Jones [1995] 2 AC 207 at pp. 262 and 265,6 and one in the speech of Lord Browne-Wilkinson at p. 276, suggesting that in relation to certain transactions inter vivos, in contrast to transactions involving testators giving testamentary instructions to solicitors, the third party beneficiaries intended to benefit under the transaction could not sue the solicitors who were negligent in carrying out the transaction.
18.	The judge expressed his conclusions thus:
“56  I am not going to strike out the children's claim.  First I regard Mr. Hill-Smith's submissions as extremely strong in relation to the investment retainer, and as in accord with orthodox learning.  But I am impressed by Miss Shaldon's submission that all of the observations cited have been obiter, admittedly from the highest authority, but given at a time when the basic principles themselves were just being ascertained and established.  There is no decided case drawn to my attention where these obiter observations have in fact been applied to defeat a claim.
57  Secondly, certainly part of the reasoning in White v Jones   proceeds on the footing that it lies in the power of the donor to put right the intended gift which has failed, either because the original transaction has never effectively proceeded, or on the footing that if it has, the intending donor can, by proceeding against the solicitor, recoup the property and redirect it.  It may make a difference that in the present case the transaction (the establishment of the trust) was an effective one and it is the nature of the investment (as it has been called) that has failed (ie the preservation of the capital).  Or it may be that a court at trial would determine that the third party claim by the children should not in law depend on whether or not the parents as donors can afford to sue the solicitor to recoup damages and to make the gift which they originally intended.
58  I have reached the clear conclusion that it would be wrong on this summary application to express a concluded view on those difficult questions, particularly since I am satisfied that the "monitoring claim" is by no means straightforward, and that I cannot say in relation to that claim that there are no reasonable grounds for bringing it.  The monitoring claim arises from a retainer entered into after the parents had disposed of the relevant property.  It was a retainer, if established, which was for the benefit of the children.  It seems to me that the decision of the Court of Appeal in Dean v Allin & Watts [[2001] PNLR 921] provides at least an apparent foundation for saying that where a retainer was intended specifically to confer a benefit on a third party, that third party may sue on it where the client has suffered no ascertainable loss.  That seems to me to accord also with the decision in [Woodward v Wolferstans 20 March 1997, a decision of Mrs. Martin Mann Q.C. sitting as a deputy judge of the Chancery Division]. Since I am satisfied that that claim must go to trial, I see no advantage in striking out the claim based on the investment retainer.  I shall therefore refuse the relief sought in the application ….”
19.	The judge required that the claims be amended to indicate that they were brought in the alternative.  That has now been done, the children’s and the parents’ pleadings now stating expressly that their respective claims are brought in the alternative with the children’s claim being the primary claim.  The judge also required the question of representation to be addressed.  He said that he gave no direction that there should be separate representation by counsel but he said that he saw difficulties at trial if claims were advanced in the alternative by different claimants through the same counsel.  I return to that point later.
The rival submissions
20.	 On this appeal Mr. Hill-Smith makes the following submissions which I summarise in my own words:
(1)  the judge, while correctly accepting that the submissions made below on behalf of Mr. Richards in relation to the investment retainer reflected orthodox learning, failed to give effect to those submissions in refusing to strike out the children’s claim;
(2)  the judge should have struck out the children’s investment claim on the basis that the loss was that of the parents who had provided the funds and not that of the children; the parents by their claim for damages could remedy the breach of duty by Mr. Richards;
(3)  the judge erred in not giving effect to the obiter views of Lord Goff and Lord Browne-Wilkinson in White v Jones;
(4)  the right of the parents to recover damages in respect of the sums invested in the scheme is fully consistent with the principles governing the right of the promisee to recover damages in a building contract for the benefit of a third party; the fact that the promisee has transferred the property the subject of the contract does not prevent the promisee from recovering damages (see the decisions of the House of Lords in Linden Gardens Trust v Lenesta Sludge Disposal [1994] 1 AC 85 and Alfred McAlpine Construction Ltd. v Panatown Ltd. [2001] 1 AC 518);
(5)  the judge was wrong to treat the monitoring claim as subject to different considerations;
(6)  the judge in exercising his discretion should have taken account of the fact that the children’s claim is supported by legal aid; that it is in the public interest that a claim with little prospect of success brought on behalf of a legally aided claimant should not be allowed to proceed to trial, and that it is most unlikely that a costs order could be enforced against the children.
21.	For the children a Respondent’s Notice has been filed, seeking to uphold the decision of the judge on additional grounds.  Miss Shaldon makes these submissions:
(1)  the judge has not been shown to have made any error in the exercise of his discretion or to have reached a decision falling outside the ambit of reasonable disagreement;
(2)  the judge was right for the reasons which he gave to refuse to strike out a claim in an area of the law which is uncertain and developing when the facts have not been found;
(3)  the judge should have held that the loss was that of the children, the parents by an effective transaction having divested themselves of the £30,000 paid to the trust and their right to the royalty payments; the loss was suffered by the failure of the investment which took place over a period of years, and the measure of damages claimed is the value of the fund which, if properly invested, would have been held on trust for the children.
Discussion
22.	I start by considering what is the correct approach on a summary application of the nature of Mr. Richards’s application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care.  The correct approach is not in doubt:  the court must be certain that the claim is bound to fail.  Unless it is certain, the case is inappropriate for striking out (see Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557 per Lord Browne-Wilkinson).  Lord Browne-Wilkinson went on to add:
“[I]n an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out.  In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”
23.	That further observation by Lord Browne-Wilkinson seems to me to be particularly pertinent to the circumstances of the present case.  This case relates to what Steyn L.J. in White v Jones at p. 235 called “the interface of what has traditionally been regarded as the separate domains of contract and tort”.  The general rule is that a professional adviser acting on behalf of a client owes a duty of care only to his client and, because the relationship will almost certainly be contractual, the adviser will owe such duty of care both in contract and in tort.  In contract the general rule is that substantial damages can only be given for loss suffered by the claimant promisee.  However the law has recognised limited exceptions to those general rules in specific areas.  For example in cases involving carriage of goods where it is in the contemplation of parties to a contract concerning goods that the proprietary interest in the goods may be transferred from one owner to another after the contract has been entered into and before a breach causing loss or damage to the goods, the promisee is treated as having entered into the contract for the benefit of subsequent owners of the goods and is entitled to recover by way of damages for breach of contract the loss sustained by those for whose benefit the contract is entered into (see The Albazero [1977] AC 774 at p. 847 per Lord Diplock).  The principle of that exception has been extended to building contract cases by Linden Gardens, so that the promisee, contracting for work to be done on its property, but then, as was foreseeable,  selling the property to a third party before the contract was breached, can recover substantial damages on behalf of the third party suffering from the defective performance of the contract.  The minority view of Lord Griffiths in the House of Lords in that case, that the promisee had itself suffered a loss by reason of the breach of contract in that it did not receive the bargain for which it had contracted, was subsequently approved in Alfred McAlpine, though Lord Millett at p. 591 restricted the principle to building contracts and other contracts for the supply of work and materials where the claim was in respect of defective or incomplete work or delay in completing it.
24.	In White v Jones a further exception has recently been recognised: a contract between a testator and a solicitor for the solicitor to draw a will benefiting third parties as legatees may give rise to a tortious duty of care owed to the third parties.  The House of Lords, impelled by a strong desire to do practical justice in a case where otherwise the only person who had a valid claim was the testator who suffered no loss and the only person to suffer loss had no valid claim, fashioned a remedy under the principle of Hedley Byrne & Co. v Heller & Partners Ltd. [1964] AC 465, by holding that the assumption of responsibility by the solicitor towards his client extended to the intended beneficiaries so that they could recover for their economic loss.
25.	The implications of White v Jones are being explored case by case.  Thus, in Carr-Glynn v Frearsons [1999] Ch. 326 this court extended the principle of White v Jones, so that where a testator had to sever a joint tenancy of a property to effect a testamentary gift of the testator’s share, the solicitor was held liable to the intended beneficiary for the solicitor’s failure to advise the testator of the need to serve a notice of severance.
26.	In White v Jones there was some discussion of whether in the case of an inter vivos gift the donee or the donor had the right to sue the solicitor advising on the gift if there was negligence.  Lord Goff ([1995] 2 AC at p. 262) referred to the example of an imperfect gift, when the mistake comes to light during the donor’s lifetime but the donor declines to perfect it in favour of the intended donee.  Lord Goff expressed the view that the donee could not have any claim against the solicitor, it being enough that the donor is able to do what he wishes to put matters right.  Again at p. 265 Lord Goff referred to another example, a gift directed to a person other than the intended donee during the donor’s lifetime.  He said that the donee would have no claim because the donor would either have been able to recover the gift from the recipient or, if not, he could have recovered the full amount from the negligent solicitor as damages.  Lord Browne-Wilkinson at p. 276 said of transactions inter vivos that they take immediate effect and that the consequences of the solicitor’s negligence are immediately apparent, and, when discovered, they can either be rectified by the parties or damages can be recovered by the client.
27.	Those remarks were, as Judge Norris observed, obiter.  Further, it is not obvious that they covered an example corresponding to the circumstances of the present case where the gift was neither imperfect nor misdirected nor were the consequences immediately apparent, but only emerged several years after the scheme, which the parents intended to enter into, was implemented; only then was the loss of the investment discovered.  The views expressed were not tested by consideration of what would be the position if the donor, the availability of a remedy to whom was the crucial factor in the views expressed, died or became bankrupt or was denied the remedy by reason of a limitation defence.  In no subsequent case, again as Judge Norris observed, has there been an actual decision applying those remarks.  However, it is right to note that in Hemmens v Wilson Browne [1995] Ch. 223, decided after this court’s decision in White v Jones but before the decision of the House of Lords, His Honour Judge Moseley Q.C., sitting as a High Court Judge, held that the intended beneficiary under an inter vivos gift which, through the negligence of the donor’s solicitor, gave the beneficiary no enforceable right, was owed no duty of care by the solicitor as the donor had a remedy against the solicitor.  That is consistent with Lord Goff’s subsequent comments on imperfect gifts.  In Gorham v British Telecommunications plc [2000] 1 WLR 2129 at p. 2140 Pill L.J. made a passing (but approving) reference to Lord Goff’s example of the imperfect gift.  In Gorham this court appears to have assumed that the death of a customer of an insurance company, which had given him negligent advice in relation to the provision of benefits after his death for his family, resulted in the customer’s estate having no claim against the insurance company, and that only the family would have a remedy; accordingly the family was held to be owed a duty of care by the insurance company in respect of the advice to the customer.
28.	In the light of the authorities I would accept that Mr. Richards has a strongly arguable case that the parents and not the children are owed a duty of care in respect of the investment claim.  However, I would not go so far as to say that it is certain that the children’s claim will fail in the particular circumstances of this case.  I have already referred to Miss Shaldon’s submission based on the fact that the parents intended the particular transactions whereby they parted with the monies which went to the trust and Cedrus and that they were effective transactions.
29.	I would make similar comments in relation to the monitoring claim.  It is not disputed on this appeal that the monitoring retainer was accepted by Mr. Richards after the parents had divested themselves of any interest in the assets transferred to the trust and Cedrus.  However, I doubt if the decisions in Dean and Woodward to which Judge Norris referred can truly be said to provide a foundation for the children’s claim, because they are distinguishable on their facts.  In Dean solicitors had been retained by intending borrowers who intended that valid security should be provided by one of them to the lender.  Through the solicitors’ negligence no valid security was provided.  This court held that the solicitors assumed responsibility to the lender in circumstances in which the solicitors’ clients had suffered no loss.  In Woodward the claimant purchased property on a mortgage taken out by her but guaranteed by her father.  Solicitors were retained by the father to handle the conveyancing.  They failed to advise her on the transaction and she found herself unable to pay the mortgage payments.  The solicitors were found to owe her a duty of care in circumstances in which the father could not sue, but her claim was dismissed because even if properly advised she would have entered into the same transaction.  Those decisions provide little assistance in a case such as the present where the persons who retained the professional adviser may have good claims against him.
30.	However, in any event the present case seems to me plainly one where the relevant area of law is still subject to some uncertainty and developing and where it is highly desirable that the facts should be found so that any development of the law should be on the basis of actual and not hypothetical facts.  That is underlined by the fact that both the children and the parents make claims for loss which, while partly identical, are not wholly so.  I of course accept that it is a cardinal principle that there cannot be double recovery in respect of the same loss.  It is not asserted otherwise by the children.
31.	As matters now stand there will be a trial on the parents’ claim, which raises virtually the same issues as are raised in the children’s action.  To allow the children’s action to go to trial is not likely to add significantly to the time of the hearing.  Whilst I note the judge’s view that the children and the parents may need to be separately represented, it is not clear to me why the same counsel could not properly argue the case in the alternative, as the pleadings now make plain is the intention, with the children’s claim as the primary claim.  Miss Shaldon has told us that she felt comfortable at representing both sets of claimants.  If she does, the costs of trying the children’s action with the parents’ action will not significantly add to the costs which will be incurred on the parents’ action.
32.	I can of course understand why as a matter of tactics Mr. Richards would like the children’s action out of the way so that he can then deal only with the parents, who may have a limitation problem and who are not legally aided.  But that is not a factor which should have weighed in the exercise of the court’s discretion.  I think it wrong in principle that the court should pay any regard to the fact that the children have public funding.  That would discriminate against publicly funded litigants, contrary to s. 31 (1)(b) Legal Aid Act 1988.
Conclusion
33.	This court cannot interfere with the exercise of discretion by the judge to refuse to strike out or dismiss the action unless the judge has erred in law or taken into account irrelevant matters or left out of account relevant matters or otherwise has gone plainly wrong.  I am not persuaded that the judge has done any such thing.  On the contrary, it seems to me that in the particular circumstances he was right to allow the children’s action to go to trial.  I would dismiss this appeal.
Jacob LJ : 
34.	I agree with the judgment of Peter Gibson LJ.   There is also, it seems to me, a narrower, arguable ground of liability.  This is that in relation to both retainers the Defendant should be regarded as acting not only for the parents, but also directly for the children.   After all they could not act for themselves – they were under age.   Putting it another way, it is at least arguable that viewing the transaction as a whole, the defendant was advising both donors and donees.  If that analysis is correct, then this would not be a case of a duty of care extended to a stranger intended to be benefited by a contract between two others.  There would be a direct contractual duty owed to the children.
35.	The children’s pleading (paragraph 22) covers this analysis, alleging as it does, inter alia, that the parents were “acting on behalf of and for the benefit of the claimants.”
Sir William Aldous:
36.	I agree with both judgments.
Order: Appeal dismissed; the appellant to pay the respondent’s costs of the appeal, to be subject to detailed assessment on the standard basis if not agreed; respondent’s costs to be the subject of a detailed assessment in accordance with the Community Legal Service (Costs) Regulations 2000.
(Order does not form part of the approved judgment)