Case No: B2/2009/2417
Neutral Citation Number: [2010] EWCA Civ 1614
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM CARDIFF CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE CHAMBERS QC)
Sitting at:
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET

Date: Wednesday 21st July 2010

Before:

THE MASTER OF THE ROLLS
LORD JUSTICE PILL
and
LORD JUSTICE RICHARDS
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Between:

	David T Jones	Appellant	
	- and -		
	
Geldards LLP	
Respondent	
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The Appellant appeared in person.
Miss Eva Ferguson (instructed by Geldards) appeared in person.
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Judgment
Lord Neuberger:

1.	This is an appeal brought by Mr David Jones against a decision of HHJ Chambers QC, who gave judgment for Geldards LLP in a sum of around £24,000. Geldards claimed this from Mr Jones as payment for having represented and advised him in connection with proceedings brought against him in the Magistrates’ Court, and, on appeal to the Crown Court, under Section 17(1) of the Forestry Act 1967.  They had already been paid around £23,000, and they then claimed the balance of the costs.  Mr Jones raised a number of defences, essentially based on allegation of negligence against Geldards the “solicitors”, as I shall call them.  Only one of those defences is relevant for the purposes of this appeal and it is that they failed to advise him that he could apply for legal aid in order to fund his defence in the proceedings.

2.	The facts in a little more detail are these.  Mr Jones purchased a farm in Caerphilly in 2002. In November 2005 he received a summons in respect of two charges of unlawful felling of timber contrary to section 17(1), which provides that anyone who fells a tree without a felling licence, is, subject to certain exceptions, guilty of an offence, and, on summary conviction,  is liable to a fine not exceeding level 4 on the standard scale, or twice the value of the tree.

3.	On the day that he received the summons, Mr Jones already had fixed a meeting with one of the partners of the solicitors on a civil matter, and at the meeting he was put in touch with the solicitors' criminal department.  The solicitors agreed to act for him on a privately funded basis in connection with the charges, but they did not, he said and the judge accepted, advise him about the availability of public funding.  It was decided that Mr Jones would rely on Section 9(3)(b) of the 1967 Act as a defence to a charge of unlawful felling.  The relevant constituents of the defence are (i) that the aggregate cubic content of the trees felled without a license did not exceed five cubic metres in any quarter and (ii) that the aggregate cubic content of the trees so felled, which were sold, did not exceed two cubic metres.  There appears to have been no selling of the trees, so it was only the first condition that had to be satisfied.

4.	The charge came on for hearing before the Magistrates on 19 July 2006. Mr Jones gave evidence and five witnesses were called on his behalf.  On behalf of the prosecution three witnesses were called.  One was a witness with relevant expertise.  I do not think it is helpful to decide whether he was technically an expert witness or not but he undoubtedly had expertise.

5.	The defence based on section 9(3)(b), to which I have referred, failed and Mr Jones was found guilty of the two offences with which he was charged.  He was fined £1,000 on each offence and ordered to pay £8,000 costs.  Mr Jones decided to appeal and tried to obtain expert evidence.  It is unnecessary to go into the details of the expert evidence he obtained because although it founded the basis of some of his allegations below, those allegations failed and are not pursued on appeal.  Suffice it to say that the Crown Court dismissed the appeal but did not alter the fine or the costs order.

6.	The solicitors sought payment of their fees and I have already made reference, in round terms, to the sums involved.  

7.	Initially Mr Jones's defence and counterclaim, which alleged professional negligence against the solicitors, relied essentially on allegations relating to alleged negligence regarding expert evidence.

8.	The trial began before HHJ Curran QC and was adjourned part-heard.  When it resumed on 19 August 2008, an application was made for Mr Jones to amend his Defence. The judge, Judge Curran, indicated that he was either strongly inclined, or was actually going to recuse himself because he knew a partner of the solicitors well, but he nonetheless expressed certain views on the application by Mr Jones to amend.  That amendment sought to raise for the first time the allegation that the solicitors failed to advise him about the possible availability of public funding.  Although he recused himself, Judge Curran expressed the view that Mr Jones should have permission to amend and indeed, on one view at any rate, expressed an opinion as to the likelihood of that argument succeeding.  Be that as it may, Judge Curran then recused himself. 

9.	Subsequently, on 7 October 2008, Mr Jones was given permission to amend to allege negligence in failing to advise on the possibility of obtaining legal aid and HHJ Seys-Llewellyn QC, also ordered disclosure and permitted consequential  amendments.

10.	Meanwhile, in an unrelated matter, Mr Jones was prosecuted under section 179(2) of the Town and Country Planning Act 1990, and he obtained a representation order dated 2 October 2008 (“the 2008 order”) from the Legal Services Commission giving him public funding - or legal aid - in connection with those proceedings, and instructed other solicitors.  In those proceedings, just for the record, he was convicted on 23 September 2008 and was then granted public funding for the purpose of appealing to the Crown Court.

11.	Reverting to the claim where Mr Jones was represented by the solicitors, the trial having been aborted before Judge Curran took place before HHJ Chambers QC between 27 April and 29 April 2009.  At the hearing it appears that no reference was made to the 2008 representation order until Mr Jones handed it in.  Mr Jones, who represented himself before Judge Chambers, handed it in with his closing submissions, which consisted of a four-page handwritten document, at the end of which he referred to the October representation order which he had obtained.  A copy of those submissions together with a copy of the 2008 representation order went to counsel representing the solicitors, Ms Ferguson, who appears on this appeal as well.

12.	On 24 July 2009, Judge Chambers handed down a written judgment. Basically, he dismissed all the defences which Mr Jones had raised.  Those relating to alleged negligence in connection with the expert evidence are of no further relevance for the purpose of this judgment.

13.	As to the public funding issue, with which we are concerned, HHJ Chambers expressed his views in paragraphs 36-45.
14.	Following the handing down of that judgment, on 20 July 2009 Mr Jones tried to persuade Judge Chambers to change his mind on the ground that he had failed to take into account two relevant factors.  One was the much rosier view which Judge Curran had expressed, when recusing himself but considering the application for permission to amend, on the prospects of the contention that Mr Jones had a valid defence and counterclaim in relation to the legal aid question. His second point was, Judge Chambers' failure to make any reference to or to take into account the 2008 representation order.  While accepting that he could vary his judgment, Judge Chambers decided that it would be inappropriate for him to do so, and he made appropriate orders including entering judgment for the solicitors, and he subsequently made an interim charging order.

15.	Mr Jones applied for permission to appeal effectively on all the grounds on which he lost, and the only one on which he obtained permission was the one before us namely that the solicitors failed to advise about legal aid.

16.	In my view the judge was right to identify the four issues that he did by reference to the solicitors' argument in paragraph 37 of his judgment.  In order for Mr Jones to succeed in his argument, without indicating that there is a particular burden of proof, he would have to get over the four hurdles identified by the judge.  The first was the allegation by the solicitors that Mr Jones was already aware of his right to legal aid.  The judge rejected that and, in my view realistically, Ms Ferguson has not tried to challenge that. Secondly, there was the assertion by the solicitors that Mr Jones had been told or must have been told of his right to obtain legal aid.  The judge rejected that and again Ms Ferguson has realistically not sought to challenge it.

17.	The third hurdle is the allegation that Mr Jones would not have applied to obtain legal aid as, to use the judge's words, he would have wanted “a Rolls Royce service”.  It is, I have to say, slightly unfortunate that the judge has not expressly dealt with that point but it seems to me pretty clear from the way in which he dealt with the matter in paragraphs 39 to 42 that he was in favour of Mr Jones on this point.

18.	Furthermore, the fact that Mr Jones had applied for and taken up legal aid pursuant to the representation order of 2 October 2008 supports the proposition that that he would have sought to obtain legal aid, and would have acted with the benefit of it, if he could have done so.  Again Ms Ferguson has, to my mind quite rightly, not sought to argue otherwise.

19.	That then requires one to focus on the final hurdle which was set up against Mr Jones, namely that he would not have got legal aid.  The judge formed the clear view that he would not have got legal aid The relevant legislation governing the question of legal aid at the time was paragraph 5(2) of Schedule 3 to the Access to Justice Act 1999, it being accepted, again sensibly, by Ms Ferguson, that the question of means would not have been relevant at this time.  

20.	Paragraph 5(2) of Schedule 3 provides: 

" In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account— 
(a) whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation, 
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law, 
(c) whether the individual may be unable to understand the proceedings or to state his own case, 
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and 
(e) whether it is in the interests of another person that the individual be represented. 

At the relevant time, the interests of justice was the sole relevant basis upon which applications for legal aid were considered: see paragraph 5(1) of Schedule 3.

21.	It is clear that the judge considered that paragraph 5(2)(a) was the only relevant provision.  If that had been correct, I for my part would have seen considerable difficulties in Mr Jones’s way.   But nowhere did the judge address paragraph 5(2)(d). It seems to me that Mr Jones would have had a fairly powerful case for saying that, had he applied for legal aid or considered applying for legal aid in accordance with advice that should have been given to him by the solicitors, the proceedings brought against him under section 17(1) of the Forestry Act fell within paragraph 5(2)(d).  As I say, he wanted to call five witnesses.  There were three witnesses, one of whom had significant expertise, to be called against him.  He could have said that the proceedings were not straightforward and that the evidence was such that "expert cross-examination of witnesses" was required.  

22.	With due respect to the judge, on the basis of the evidence before him and even ignoring the representation order of October 2008, it was in my view, impossible to say in light of paragraph 5(2)(d) of Schedule 3 to the 1999 Act that there was no chance of Mr Jones obtaining legal aid.  On the contrary, or at present advised, it seems to me that he had a reasonable chance.  I consider that that view is reinforced by the fact that he did get legal aid on 2 October 2008 pursuant to the representation order to which I have referred in relation to the prosecution under the Town and Country Planning Act 1990 to which I have referred. 

23.	Ms Ferguson sought to argue that that could not be relied on because of the well-known principle that one cannot rely on evidence not put before the judge on an appeal save in the absence of well-known exceptions, see Ladd v Marshall [1954] 1 WLR 1489 and Hertfordshire Investments Ltd and Bubb [2001] 1 WLR 2318.  However, in my view this evidence was before the judge, albeit in a somewhat imperfect way, namely handed in by Mr Jones without any specific objection from the solicitors either at the time (or subsequently - because there was nearly three months between the submissions being handed in and judgment being handed down),I accept that it was not the way things should have proceeded. Mr Jones should have disclosed the document in accordance with Judge Seys-Llewellyn’s order.  He should have referred to it in his evidence.  He should have been able to be cross-examined about it. So I quite accept that what happened was unfortunate. But I think that the representation order can be referred to. For my part, even in its absence I would have held that Judge Chambers was not entitled to reach the conclusion that there was no prospect of Mr Jones getting legal aid. What the representation order does is to give comfort in reaching my conclusion and to reinforce it.  But I accept that one must be careful about relying on it, given that it should have been produced earlier and Ms Ferguson could have cross examined on the details of that charge, the solicitors could have asked for further disclosure in relation to that charge and it might well have turned out to have been significantly more complicated or more dangerous, from the point of view of Mr Jones's finances or even his liberty, than the challenge under the Forestry Act.  It is a matter of uncertainty.

24.	So I think I would for my part go no further than saying that the representation order gives me comfort in the conclusion that I would have reached even in its absence.

25.	That then leaves the question as to what we should do.  The judge's decision cannot stand.  One possibility is that the matter should be remitted.  I would be strongly against that and Ms Ferguson very fairly did not invite us to take that course nor did Mr Jones, who addressed us, it is fair to say, very briefly.  It seems to me that for the amount of money and the likelihood of the value of the matter being remitted we have to grasp this nettle and make up our own minds.  As Ms Ferguson said in her very fair and well expressed written and oral submissions, for which the court is very grateful, this is a case where, once one decides that the judge was wrong, it is effectively a loss of a chance  case. I am satisfied that Mr Jones would have applied for legal aid and I am satisfied that there is a reasonable chance he would have got it.

26.	In those circumstances we have to take a view as to what the prospects are and the value of the defence and the counterclaim has to be assessed accordingly: see Allied Maples Ltd and Simmonds and Simmonds [1995] 1 WLR 1602.  

27.	I would suspect that if the matter went back or if the matter had been fully and properly argued before HHJ Chambers, and his attention had been specifically drawn to paragraph (d), he would have assessed the prospects at least 50 per cent and probably not much more.  In my view, the right figure for us to assess is 50 per cent.  
28.	The consequence of this, as I see, is that the claim should be dismissed.  As I have said, in round figures what was claimed from him was £24,000 and he had paid in £23,000. To say that that produces a balance of £500 against him and in favour of the solicitors appears to me to suggest a degree of precision which is completely inappropriate for the 50 per cent I have arrived at.  In my view, given that he had paid nearly half the sum claimed by the solicitors, the right conclusion is that the proceedings were, unfortunately for the solicitors, misconceived and for my part, for these reasons, I would allow the appeal and dismiss the claim.

Lord Justice Pill:
30. I agree.

Lord Justice Richards: 
31.	I also agree.

Order: Appeal allowed; Claim dismissed

P O S T ‑ J U D G M E N T   P R O C E E D I N G S 

1.	LORD JUSTICE NEUBERGER:  So the money lies where it falls in terms of fees.  Mr Jones, I think you have the right to apply for the costs of the hearing below because our conclusion is that the proceedings should not have been brought.
2.	THE APPELLANT:  I think it is better left where it lays.
3.	LORD JUSTICE NEUBERGER:  I think it is too because the answer in part would be you ran a lot of points which failed, and I think that is, if I may so, a very sensible conclusion.
4.	MISS FERGUSON:  Sorry, my Lord, I missed what the suggestion was.
5.	LORD JUSTICE NEUBERGER:  He says leave everything where it is, he is not asking for his costs, as I understand it.  The argument against you is that the claim should not have been brought because we are saying the money on account really deals with it.  
6.	There is one point I did not deal with, and that was the costs of the appeal to the Crown Court.  I am sorry, I should not dealt with that.  Let me this addendum to my judgment.  
7.	Miss Ferguson argued that if, as he did, Mr Jones had appealed from the Magistrates Court he would have been at risk from having to pay the costs of or make a contribution to the costs of the unsuccessful appeal.  There is no doubt that the relevant legislation is such that he might have been at risk by such an order, but it seems to me far too speculative to indulge in that sort of enquiry.  It may be that if he had been represented on legal aid he would not have been awarded legal aid for an appeal.  It may be that if he had appealed because of his means, because means would have been relevant at that stage in relation to the costs of an appeal, he would not have been held liable for the costs anyway.  In my view, it is simply too speculative to take that into account and therefore it should be simply ignored.  The relevant provision which would have made him liable for costs subject to means on an appeal is the Criminal Defence Service Recovery of Defence Costs Orders Regulations 2001, Regulation 4, as amended by the 2004 Regulations.  In my view, that is simply gazing into the crystal ball too far. 
8.	LORD JUSTICE PILL:  I agree with that too.  
9.	LORD JUSTICE RICHARDS:  As do I.
10.	MISS FERGUSON:  Sorry, my Lord, so the order below of course was that the claim succeeded and the defendant was to pay the costs of the claim.
11.	LORD JUSTICE NEUBERGER:  Subject to what you say, it seems to us that the claim has failed because he had paid 23, you were claiming 24, but if he gets half off for 50 per cent, there is nothing left.
12.	MISS FERGUSON:  So are you saying that the costs order that was made below should not stand? 
13.	LORD JUSTICE NEUBERGER:  Yes, subject to what you have to say.
14.	MISS FERGUSON:  My Lord, the claim for payment of fees was successful.  What you have found is that, in effect, the counterclaim is also successful.
15.	LORD JUSTICE NEUBERGER:  Yes.
16.	MISS FERGUSON:  You have found that there was a 50 per cent chance Mr Jones would have paid his fees, so it works out as 0/0.  But the vast majority of the costs incurred at trial below, and indeed the trial before His Honour Judge Curran recused himself, up until the point of recusal there had been ‑‑  
17.	LORD JUSTICE NEUBERGER:  That is true.
18.	MISS FERGUSON:  ‑‑ no legal aid point, so all of those costs related to Geldard's claims for fees paid.
19.	LORD JUSTICE NEUBERGER:  I see that.  On the other hand, the net result is that the claim should not have been brought, basically it would have been better if nobody had done anything, and on top of that there is this appeal, which on any view Mr Jones would have his costs.  Is it not best for us just to put a line through it all and say no order? 
20.	MISS FERGUSON:  The fair result would be that the issue which Mr Jones lost on, which was the substantive allegations of negligence and conduct the Magistrates Court and Crown Court trial, he lost on all of those points at trial, and although he requested permission to appeal on that, was refused, so all of the costs relating to that issue should belong to the claimant.  I accept that Mr Jones has been successful on the narrow point of appeal as to causation of legal aid and those costs should be paid to him.  It does make a very big difference.
21.	LORD JUSTICE NEUBERGER:  I understand.  What you are saying is that you should have the costs before up to the amendment? 
22.	MISS FERGUSON:  Up until the amendment.
23.	LORD JUSTICE NEUBERGER:  And following the amendment he should have his costs on the point on which he won and you should have your costs on the point on which you won, and he should have the costs of the appeal.
24.	MISS FERGUSON:  Yes.
25.	LORD JUSTICE NEUBERGER:  Yes, I see that, thank you.  
26.	You hear what is being said, Mr Jones.
27.	THE APPELLANT:  I hear what is being said, but one thing that is puzzling me is if I had got, as you say, a 50 per cent chance of getting legal aid, I would only get ‑‑ working it from the point presuming I would have got legal aid, there would not have been any of these costs in the first instance, there would not have been any claims, so nothing would have occurred.
28.	LORD JUSTICE PILL:  The point is made that you also accused them of negligence and they ought to have their costs of that issue until you amended and made your present claim.
29.	THE APPELLANT:  But this legal aid issue is negligence anyway, surely.
30.	LORD JUSTICE NEUBERGER:  Your argument, I think, would be that even if they have their costs up to the date of your amendment, you should have your costs afterwards, including the costs of a three day hearing and the costs of the appeal and that it would be, if anything, generous to them for those costs to cancel out.  Miss Ferguson's answer would be, I think, is that you carried on with the baseless allegations which we have not considered but cost a lot of money in relation to the other heads of negligence which my Lord has referred to.
31.	Anything you want to add on that?  I think we will go out to consider.
(The bench retired for a short time) 
32.	LORD JUSTICE NEUBERGER:  Having given judgment on the merits of the appeal, we have heard argument on costs.  It has caused us some difficulty doing justice to both parties on costs, particularly having listened to the analysis of Miss Ferguson.  It is not easy.  
33.	It seems to us that if Mr Jones had pleaded from the start, in addition to the allegations that failed, the allegation that succeeded that he should have been and was not advised on legal aid, at the end of the day he would have received a proportion of his costs.  He would have defeated the claim, but he would have run a number of arguments that failed, and the right order under CPR 44 would have been that he should have a proportion of his costs because he won on a point he pleaded, but had run arguments that had failed and which the solicitors had to meet.
34.	The matter is complicated by the fact that he has only succeeded on a point which he amended after the hearing before Judge Curran.  
35.	On one view of the case, the right order would therefore be that the solicitors should have their costs up to the date of the amendment and that Mr Jones should have a proportion of his costs thereafter.  
36.	We have considered that order as a possibility, but come to the conclusion that justice is best served by making no order for costs.  It seems to us that if one takes into account the fact that the amendment was made before a three day hearing, plus another day when judgment was given and considered, and an appeal, all of which would be either in whole (the appeal) or in part (the three day hearing and matters leading up to the three day hearing) the subject of an order for costs in favour of Mr Jones, the fact that the solicitors could expect their costs up to the amendment more or less balances out.  
37.	Bearing in mind CPR 44 encourages us not to make orders for costs each way in respect of different periods but to set off costs if we possibly can, we think the justice of this case is best served by making no order for costs, including the costs of this appeal.  Therefore we set aside the costs order below.
38.	MISS FERGUSON:  My Lords, I hear what you say.  May I have the indulgence just to say one more thing.  The costs up to the three day trial were significant.  As you will have gathered from the circumstances of this appeal, the legal aid point played very, very little part in the three day argument, the three day trial before His Honour Judge Chambers.
39.	LORD JUSTICE NEUBERGER:  I understand that, but the truth of the matter is that, even under CPR 44 and even on issues based on appeal, you still have to look at who won, and the truth of the matter is that because of the legal aid point, although I appreciate what you say and I appreciate that a solicitor is particularly concerned to fight allegations of negligence, the truth of the matter is that the claim was, in our view, better left not brought, and in those circumstances that cannot be ignored.  We have found it difficult, and I do not pretend you do not have a point, but we think that is more than balanced out by the arguments in favour of no order for costs.  I am sorry.
40.	MISS FERGUSON:  My Lords, it is unjust.  The issues based order would totally compensate Mr Jones for the costs he has incurred, properly running the one point that he succeeded on.  The costs order that is proposed over‑compensates Mr Jones and is unjust when you look at the extent of the issues up until today.  Today is really the first ‑‑
41.	LORD JUSTICE NEUBERGER:  I think we all appreciate the force and moderation with which you put your point, but if one takes a sort of more panoptic view of the case, it nonetheless remains the case, as Mr Jones has said, that if he had been advised about this at the beginning, the 50 per cent order reflects the fact that none of this needed to have happened, and I think one has to take an overall view as well as an issue based view.
42.	MISS FERGUSON:  My Lords, it was not claiming costs as damages.  If the case was you negligently did not advise me about legal aid and therefore I then brought these proceedings and incurred all these costs and had you advised me correctly in the first place I would not have done that, then costs would quite rightly be claimed as damages.  So, with due respect, that is a slight red herring to say that because Mr Jones did not know about the legal aid point because we failed to advise him earlier that it then follows that this sort of order be given.
43.	LORD JUSTICE NEUBERGER:  Thank you.  Well, I think you deserve at least our consideration of that.
(The bench conferred for a short time) 
44.	LORD JUSTICE NEUBERGER:  We have decided that the least unjust result is the order for costs I indicated, namely no order throughout, and despite her submissions, we stick to that.  Thank you.