Halborg v EMW Law LLP [2017] EWCA Civ 793

[2017] EWCA Civ 793Case No A2/2015/1780
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
HIS HONOUR JUDGE PURLE QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/06/2017
Before
SIR TERENCE ETHERTON, MRLORD JUSTICE BEATSONLORD JUSTICE UNDERHILL
Between
MR SCOTT HALBORGAppellant /DefendantEMW LAW LLPRespondent/Claimant
Robert Marven (instructed by Deals & Disputes Solicitors LLP) for AppellantVikram Sachdeva QC (instructed by EMW Law LLP) for RespondentHearing Hearing dates: 13 June 2017
Judgment ApprovedSir Terence Etherton, MR:
[1]This appeal raises a short but important issue, namely whether a Limited Liability Partnership (“LLP”) of solicitors, which is a party to litigation and acts as its own legal representative in the proceedings, is a litigant in person within CPR 46 and so can only recover the level of costs allowed to litigants in person under CPR 46.5(2) and PD46 para. 3.4.

The background

[2]The appellant, Mr Scott Halborg, then carrying on practice as a solicitor in sole practice, was the solicitor on the record in proceedings against an architect for professional negligence, breach of contract, misrepresentation and fraud (“the main proceedings”).[3]The respondent, EMW Law LLP (“EMW”), was retained by Mr Halborg to act as his agent in the main proceedings pursuant to a conditional fee agreement.[4]The main proceedings were compromised by a substantial payment to Mr Halborg’s clients. The factual position as to how the costs liability (or part of that liability) in the main proceedings has been dealt with, as between Mr Halborg and the losing party, is not before the Court. Nothing has been paid to EMW in respect of its costs.[5]On 22 October 2013 EMW issued these proceedings against Mr Halborg (and others) in the Senior Courts Costs Office for, among other things, a detailed assessment of EMW’s costs (“the SCCO proceedings”).[6]On 6 February 2014 Mr Halborg (and others) issued an application in the SCCO proceedings for summary judgment against EMW or for the claim to be struck out.[7]That application came before costs judge Master Campbell. On 24 October 2014 he dismissed the application insofar as it related to the claim by EMW against Mr Halborg. Master Campbell also ordered that Mr Halborg pay EMW’s costs of the application, such costs to be summarily assessed.[8]On 24 November 2014 Master Campbell summarily assessed EMW’s costs in the sum of £17,600.[9]Mr Halborg appealed against Master Campbell’s orders of 24 October 2014 and 24 November 2014 on several grounds. The only ground relevant to this appeal is that, in assessing EMW’s costs of the summary judgment and strike out application, Master Campbell had wrongly refused to treat EMW as a litigant in person and to limit its recoverable costs accordingly.[10]The appeal on that ground was dismissed by His Honour Judge Purle QC, sitting as High Court Judge of the Chancery Division, in a judgment handed down on 22 May 2015 and an order of the same date.

CPR 46.5

[11]Mr Halborg relies on CPR 46.5, the terms of which are as follows, so far as relevant. “Litigants in person 46.5 –(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.(2) The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.(3) The litigant in person shall be allowed – (a) costs for the same categories of – (i) work; and (ii) disbursements, which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf; (b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and (c) the costs of obtaining expert assistance in assessing the costs claim.(4) The amount of costs to be allowed to the litigant in person for any item of work claimed will be – (a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or (b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46.(5) … (6). For the purposes of this rule, a litigant in person includes – (a) a company or other corporation which is acting without a legal representative; and (b) any of the following who acts in person (except where any such person is represented by a firm in which that person is a partner) – (i) a barrister; (ii) a solicitor; (iii) a solicitor’s employee; (iv) a manager of a body recognised under section 9 of the Administration of Justice Act 1985; or (v) a person who, for the purposes of the 2007 Act, is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act).”[12]Paragraph 3.4 of PD46 provides that the amount allowed to a self represented litigant under CPR 46.5(4)(b) is £19 per hour.

Discussion

[13]I agree with Judge Purle, for the reasons which he gave and for the additional reasons in EMW’s respondent’s notice, that EMW was not a litigant in person within CPR 46.5 when opposing Mr Halborg’s summary judgment and strike out application. The historical context[14]It is necessary to place CPR 46.5 (6) in its historical context.[15]In The London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 (“the Chorley case”) the Court of Appeal held that solicitors who successfully defended proceedings in person were entitled on taxation to the same costs as if they had employed a solicitor and were not restricted to out of pocket expenses or such other costs as would be allowed to non-solicitors. The principle was expressed as follows by Brett MR (at p. 875):
“When an ordinary party to a suit appears for himself, he is not indemnified for loss of time; but when he appears by solicitor, he is entitled to recover for the time expended by the solicitor in the conduct of the suit. When an ordinary litigant appears in person, he is paid only for costs out of pocket … but for loss of time the law will not indemnify him. When, however, we come to the case of a solicitor, the question must be viewed from a different aspect. There are things which a solicitor can do for himself, but also he can employ another solicitor to do them for him; and it would be unadvisable to lay down that he shall not be entitled to ordinary costs if he appears in person, because in that case he would always employ another solicitor. If a solicitor does by his clerk that which might be done by another solicitor, it is a loss of money, and not simply a loss of time, because it is work done by a person who is paid for doing it.”
[16]Brett MR went on to say, by way of qualification of that rule, that the successful solicitor could not recover for anything which the fact of acting for himself made unnecessary, such as consulting himself or instructing himself or attending upon himself.[17]Bowen LJ said the following (at p. 877):
“Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs; and it would be absurd to permit a solicitor to charge for the same work when it is done by another solicitor, and not to permit him to charge for it when it is done by his own clerk. The question before us does not depend on the privileges of a solicitor. My judgment is the same as that of the Master of the Rolls; the costs claimed, subject to the exceptions which have been mentioned, ought to be allowed, because there is an expenditure of professional skill and labour.”
[18]Fry LJ, agreeing with those judgments, said as follows (at pp. 878-879):
“This is not a question as to a solicitor's privilege. I think that the conclusion at which we have arrived will be beneficial to the public, because if the rule were otherwise a solicitor who is party to an action would always employ another solicitor, and whenever he is successful he would recover full costs; whereas under the rule of practice laid down by us, a solicitor who sues or defends in person will be entitled, if he is successful, to full costs, subject to certain deductions, of which his unsuccessful opponent will get the benefit.”
[19]The common law principle established by the Chorley case (“the Chorley principle”) may be summarised as being that:(1) a solicitor who acts for himself as a party to litigation can recover not only his out of pocket expenses but also his profit costs, but he cannot recover for anything which his acting in person has made unnecessary;(2) the reason is not because of some special privilege but on the purely pragmatic grounds that (a) there has actually been an expenditure of professional skill and labour by the solicitor party, (b) that expenditure is measurable, (c) the solicitor party would otherwise employ another solicitor and, if successful, would be entitled to recover the costs of that other solicitor, and (d) since he cannot recover for anything which his acting in person has made unnecessary, the unsuccessful party will have the benefit of that disallowance and so would pay less than if the solicitor party had instructed another solicitor.[20]That formulation of the principle in the Chorley case explains why the successful solicitor litigant in person was entitled to recover his costs (other than for unnecessary work) in H Tolputt & Co Ltd v Mole [1911] 1 KB 87 (Phillimore and Avory JJ) and [1911] 1 KB 836 (CA) but the successful solicitor litigant in person in In the Matter of the Prosecution of Offences Act 1985 and the Costs in Criminal Cases (General) Regulations 1986 and In the Matter of an application of Timothy Sharpe (QBD, 20 November 1995) was not entitled to recover a fee for advocacy where he had no right of audience as a solicitor (a criminal case in which the argument proceeded on the assumption that the Chorley principle applied to a defendant’s costs in favour of a solicitor defendant who was acquitted).[21]The Chorley principle was applied by the Court of Appeal in Malkinson v Trim [2002] EWCA Civ 1273, [2003] 1 WLR 463, following the introduction of the Civil Procedure Rules 1998 (“the CPR”). In that case, a solicitor defendant, who was represented on the record by the firm of solicitors of which he was a partner, successfully defended the proceedings. The Court of Appeal upheld the decision of the costs judge that the solicitor defendant’s costs were recoverable under the Chorley principle even though the defendant did not personally expend his own time and skill in defending the claim, which was handled by one of his partners or others within the firm, and the claim in the action was not one which could have been brought against the firm because it related to matters that took place when the solicitor defendant was a partner in a different firm.[22]The lead judgment was given by Chadwick LJ, with whom the other two members of the court agreed. He observed (at [9]) that the Chorley principle was incorporated into the County Court Rules 1903-1908, as Ord. 53 r.25, and, as such, was applied by the Court of Appeal in the Tolputt case and was treated as “well settled” by the Court of Appeal in Buckland v Watts [1970] 1 QB 27, 35G-H, 37F.[23]Chadwick LJ said that he could see no reason why, if a solicitor can charge for his own time, and for the time of those he employs (who may include an assistant solicitor), the position should be different if some or all of the work is carried out by one of more of his partners or by employees of the firm. He said (at [14]):
“To adopt and adapt the observation of Bowen LJ [in the Chorley case] … I would think it absurd to permit a solicitor to charge for work in the litigation when done (a) by another solicitor (or a solicitor in another firm) or (b) by his clerk (or an employed solicitor in his own sole practice) or (c) by himself, but not to permit him to charge for the same work when done (d) by employees of the firm of which he is a partner or (e) by one or more of his partners. The reasoning which led this court to the conclusion which it reached in the [Chorley] case must lead to the same conclusion in a case where the solicitor litigant carries on his practice as a solicitor in partnership. The successful litigant is entitled to an indemnity; there is no difficulty in measuring the cost of legal professional time and skill; and there is likely to be some saving of costs if the work is done within his own firm rather than if he is encouraged, in practice, to instruct another firm.”
[24]Chadwick LJ said that support for that view could be found in the decision of Stirling J in Bidder v Bridges [1887] WN 208 and in obiter views expressed by Simon Brown J in R v Stafford, Stone and Eccleshall Justices, Ex p. Robinson [1988] 1 WLR 369, 372.[25]Turning to the question whether the Chorley principle had survived the introduction of the CPR, Chadwick LJ said (at [16]) that the harshness of the common law rule that an ordinary litigant in person could not recover, as costs, compensation for the expenditure of his own time and trouble, was alleviated by rules of court made under the Litigant in Person (Costs and Expenses) Act 1975; and he referred, in that regard, to RSC Ord. 62 r.18 as it was immediately before the introduction of the CPR. That rule provided for a litigant in person to be allowed, on taxation, such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by a solicitor on the litigant’s behalf, subject to a two-thirds ceiling in respect of non-disbursement items, and a maximum of £9.25 per hour in the absence of proof of any pecuniary loss. He said (at [17]) that, although Ord 62 r.18(6) excluded solicitor litigants from the ambit of Ord. 62 r.18, it was clear that the rule-making body intended that the position of a litigant who was a practising solicitor should remain unaffected by the rule and should continue to be governed by the Chorley principle.[26]Turning to the CPR, which took effect from 26 April 1999, he said (at [18]) that the position was governed (at that time) by CPR r.48.6. He observed that r.48.6(3)(a) preserved the general principle, formerly in Ord 62 r.18(1), that costs allowed to a litigant in person shall be such costs as would be allowed if the work had been done by a solicitor or legal representative; r.48.6(2) preserved “the two-thirds restriction” formerly contained in Ord 62 r.18(2); r.48.6(4), in conjunction with paragraph 52.4 of the Costs Practice Direction which supplemented Parts 43 to 48, preserved the restriction on the hourly rate which can be charged by a litigant in person who fails to prove financial loss. He then quoted CPR r.48.6(6), which, so far as relevant, was as follows:
“For the purposes of this rule, a litigant in person includes … (b) a barrister, solicitor, solicitor's employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990) who is acting for himself.”
[27]He said (at [19]) that it was accepted that CPR 48.6(6)(b) had to be read subject to paragraph 52.5 of the Costs Practice Direction, which was as follows:
“Attention is drawn to rule 48.6(6)(b). A solicitor who, instead of acting for himself, is represented in the proceedings by his firm or by himself in his firm name, is not, for the purposes of the CPR, a litigant in person.”
[28]Chadwick LJ said (at [20]) that the effect of the direction was that the position of a practising solicitor who chose to represent himself in his firm’s name, or (where in partnership) to be represented by his firm, remained unaltered by the provisions of CPR r 48.6: his costs were allowed (or not, as the case may be) by virtue of, and in accordance with, the Chorley principle.[29]He concluded (at [24]) with the following observation:
“A partner who is represented in legal proceedings by his firm incurs no liability to the firm; but he suffers loss for which under the indemnity principle he ought to be compensated, because the firm of which he is a member expends time and resources which would otherwise be devoted to other clients. The only sensible way in which effect can be given to the indemnity principle is by allowing those costs. And, as I have sought to explain, that is the solution which, for over one hundred years, the courts have adopted as a rule of practice.”
CPR 46.5[30]The current CPR provision governing the assessment of costs awarded to a litigant in person is CPR 46.5, the relevant terms of which are set out above. It is not in identical terms to the former CPR 48.6 which was the subject of the Malkinson case, but its derivation from that earlier rule and paragraph 52.5 of the then Costs Practice Direction is clear, as is the intention to continue to apply the Chorley principle as applied in the Malkinson case. The latter is achieved by the exclusion of the persons mentioned in CPR 46.5(6) from the litigant in person provisions in CPR 46.5(1)-(5).[31]Mr Halborg does not accept that CPR 46.5(6) gives effect to the Chorley principle as originally formulated. Mr Robert Marven, Mr Halborg’s counsel, submitted that the principle has been attenuated. First, Mr Marven relied on observations of Chadwick LJ in the Malkinson case (at [22]) that the CPR provisions under consideration in that case, read in conjunction with the Costs Practice Direction, more clearly recognised a distinction between, on the one hand, the solicitor litigant who provides, in connection with his own litigation, professional skill and knowledge in the course of his practice as a solicitor, who is not to be regarded as a litigant in person, and, on the other hand, the solicitor litigant who provides skill and knowledge in his own time, that is to say outside the course of his practice as a solicitor and typically outside the office, who is to be regarded as a litigant in person and subject to the restrictions on recovery of costs applicable to litigants in person.[32]I do not regard that observation by Chadwick LJ as a departure from the Chorley principle. That distinction was always implicit in the principle since, as was made clear particularly by Bowen LJ in the Chorley case, it is the application of relevant professional skill and labour by the solicitor in the conduct of the litigation and in the course of his practice which is measurable; and it was the lack of the application of that expertise in the course of his practice which disentitled the successful solicitor litigant to a fee for his advocacy in the Timothy Sharpe case.[33]Secondly, Mr Marven submitted that a solicitor in sole practice who acts for himself in litigation is now to be treated as a litigant in person for the purposes of costs recovery, and in that regard is to be contrasted with a solicitor litigant who is represented by a firm comprising himself and one or more other partners. Mr Marven relied on the express words in parenthesis at the beginning of CPR 46.5(6)(b) for that submission: “(except where any such person is represented by a firm in which that person is a partner)”.[34]That is a slavishly literal interpretation which would produce an absurd and plainly unintended result. Mr Marven offered no policy rationale for such a distinction between, on the one hand, a solicitor litigant in sole practice who represents himself and, on the other hand, a solicitor litigant who is represented by the firm of which he is one of a number of partners. It is perfectly plain that Chadwick LJ in the Malkinson case did not consider that the CPR and Costs Practice Direction provisions under consideration in that case made such a distinction and attenuated the Chorley principle in that way. Indeed, he said (at [14]) that he regarded such a distinction as “absurd”. Paragraph 52.6 of the then Costs Practice Direction expressly treated the solicitor litigant in sole practice and the solicitor litigant in a multi partner firm identically. Further, so far as concerned the application of the indemnity principle, Chadwick LJ’s analysis was to acknowledge that the Chorley principle applied to the case of a solicitor litigant in a multi partner firm because there was no material distinction between such a solicitor and a solicitor in sole practice. Nothing has been shown to us to indicate that a conscious decision was taken by the Civil Procedure Rule Committee or the Government, in bringing into effect CPR 46.5, to create what, on the face of it, would be an irrational and indeed absurd distinction.[35]I consider, therefore, giving the words in parenthesis at the beginning of CPR 46.5(6)(b) a purposive interpretation in the light of Malkinson case and the history of the Chorley principle, that the word “firm” includes a solicitor in sole practice and “partner” includes a case where there is only one principal in the firm.[36]That then leaves the issue whether a solicitors LLP within the Limited Liability Partnerships Act 2000, and the members of it, are to be treated differently, for the purposes of CPR 46.5(6), to an ordinary partnership firm of solicitors within the Partnership Act 1890 and the partners of such a firm. No sensible policy reason has been given on behalf of Mr Halborg for such a distinction. There is no discernible reason why the Chorley principle, and the rationale underlying it, should be applicable to a traditional partnership but inapplicable to an LLP.[37]The fact that former has no separate legal personality and the partners have unlimited liability whereas the latter is a body corporate (pursuant to section 1(2) of the 2000 Act) and its members enjoy limited liability (pursuant to section 1(4)) does not bear on the rationale for the Chorley principle.[38]In Mr Marven’s written skeleton argument, but not repeated in his oral submissions, it is said that one reason for making a distinction is that, as observed by Chadwick LJ in the Malkinson case, a partner of a firm governed by the 1890 Act cannot contract with his or her partnership, and that is not the case with an LLP. That observation was made, however, in the context of an explanation by Chadwick LJ that, even though a partner who is represented by his firm in legal proceedings incurs no liability to his firm, that does not preclude him relying on the Chorley principle by virtue of the indemnity principle since the rationale for the principle is that he suffers loss because the firm of which he is a member expends time and resources which would otherwise be devoted to, and earning profit costs from, other clients. That rationale applies equally to a solicitor member of an LLP.[39]Mr Marven submitted that, even if that is true, Chadwick LJ’s explanation of the application of the indemnity principle in the case of a partner represented by his firm is unconvincing and unsound, and so the anomalous position of a solicitor litigant represented by his firm should not be extended further. We are bound, however, by the Malkinson case, and indeed by the Chorley case, as to the application of the indemnity principle in the case of solicitor litigants represented by themselves or their partners. In any event, I do not regard the application of the indemnity principle as anomalous or unconvincing in circumstances where (as has repeatedly been stated in the cases) the expenditure of professional skill and labour by the litigant solicitor or his partners can be measured and it is a fair starting assumption that, if not working on the litigation for the solicitor litigant, they would be earning profit undertaking work for other clients.[40]Mr Marven also submitted that the Chorley principle should not be extended further because the principle gives an unfair advantage to solicitors and is a dated anachronism. The judgments in Chorley, however, explain why the principle is not a “privilege” but is explicable on pragmatic grounds, which include the advantage conferred on the paying party. Furthermore, it is clear that neither the Civil Procedure Rule Committee nor the Government, when bringing CPR 46.5 into effect, regarded the Chorley principle as an anachronism since it is expressly preserved in the words in parenthesis at the beginning of CPR 46.5(6)(b).[41]Finally, by way of general policy justification for a distinction between the partners in a firm governed by the 1890 Act and the members of an LLP, Mr Marven relied on his submission that CPR 46.5(6) constitutes a narrowing or an attenuation of the Chorley principle, and so it would be inconsistent and wrong to extend it beyond its common law limits. I have, however, already rejected the submission that there has been any narrowing of the application of the principle either by the Court of Appeal in the Malkinson case or in CPR 46.5.[42]It is against that background and those policy considerations that I now turn to the wording of CPR 46.5(6).[43]The Judge’s analysis was that EMW is excluded from being a litigant in person for the purposes of CPR 46.5 because(1) it is a corporation,(2) corporations are governed exclusively by CPR 46.5(6)(a), as(3) CPR 46.5(6)(b) applies only to individuals, and(4) EMW falls outside CPR 46.5(6)(a) as it is to be regarded as having been acting with a legal representative for the purposes of that provision.[44]I agree with the Judge that EMW falls outside CPR 46.5(6)(a) because it is a corporation which is to be treated as having been acting with a legal representative for the purposes of that provision.[45]I do not accept Mr Marven’s submission that, because EMW has not been acting through any form of legal representative (as defined in CPR 2.3(1)) other than itself, it has been “acting without a legal representative” for the purposes of CPR 46.5(6)(a). That interpretation would produce an anomalous and indeed absurd result. Mr Marven accepted the correctness of the commentary in the 2017 White Book at 46.5.1 that a company acting through an in house legal representative who is in possession of a practising certificate or equivalent authorisation will not be treated as a litigant in person and the legal representative will be able to recover costs in the normal way on behalf of the company. There is no coherent reason for permitting the recovery of legal costs in such a situation and denying them where the corporate entity is a solicitors LLP, which acts by its members or their employees.[46]Mr Marven appeared to submit that a justification for the difference might be that the in house legal representative would be paid. I find it difficult to understand the relevance of that point since both the company, in that example, and the solicitors LLP on the record would be acting through one or more human agents, whose time and expertise would be deployed in the litigation when they would or might have been deployed on other profitable matters. Moreover, the Chorley principle proceeds on the basis that the solicitor litigant or his partners who act in the litigation are expending labour and expertise which can be measured and so is equivalent to cost or loss. That is equally true of the members and employees of a solicitors LLP acting for the LLP in litigation to which it is a party.[47]For those reasons, consistently with the Chorley principle and its continued application to solicitors’ partnerships governed by 1890 Act by virtue of the words in parenthesis in CPR 46.5(6)(b), and giving CPR 46.5(6)(a) a purposive interpretation, EMW should be regarded as acting with a legal representative for the purpose of CPR 46.5(6)(a).[48]Mr Vikram Sachdeva QC, for EMW, referred to, and so far as necessary, relied on Quader v Esure Services Ltd [2016] EWCA Civ 1109. In that case, the Court of Appeal, contrary to the clear and unequivocal wording of the provisions of the CPR relating to the fixed costs regime for claims started under the RTA Protocol, treated those provisions as limiting the fixed costs regime to the period before any claim was moved from the fast track to the multi-track. It did so on the basis that, even though such an interpretation was inconsistent with any ordinary process of construction or interpretation of the wording of the relevant rules, and giving the express words their ordinary meaning would not produce an irrational outcome or, on the face of it, one which could not possibly have been intended, it was clear, having regard to the history, that those legislating for the RTA regime never intended that it should apply to a case allocated to the multi-track. The Court of Appeal made its decision on the basis of the following jurisdiction of the court described by Lord Nicholls in Inco Europe Ltd v First Choice Distribution [2001] 1 WLR 586 at 592C-H:
“It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation, 3rd ed. (1995), pp. 93–105. He comments, at p. 103: ‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’ This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: …”
[49]I do not regard it as necessary to resort to the Inco Europe jurisdiction to achieve the interpretation of CPR 46.5(6)(a) which I have decided. The absurdity of the result for which Mr Halborg contends on the facts of the present case, the language of CPR 46.5(6)(a), the background of the Chorley principle and its continued application to solicitors in sole practice and in partnership with others enable the purposive interpretation to be given for which EMW contends and the Judge found. If, however, it were necessary to do so, I would have reached the same result on the basis of the Inco Europe jurisdiction.[50]That then leaves the application of CPR 46.5(6)(b) to the present facts. I also agree with the Judge that EMW falls outside CPR 46.5(6)(b) even though it is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of the Legal Services Act 2007 (“the 2007 Act”) and so, on the face of it, falls within CPR 46.5(6)(b)(v). I agree with the Judge that, on its proper interpretation, CPR 46.5(6)(b) is to be interpreted as applying only to individuals.[51]I accept Mr Marven’s submission that(1) this gives the phrase “authorised person” in CPR 46.5(6)(b)(v) a meaning different from its meaning in the 2007 Act”) where (as is common ground) it includes corporations; and(2) the persons mentioned in CPR 46.5(6) (b) (i) to (v) mirror the persons included in the definition of “legal representative” in CPR 2.3(1) and (as again is common ground) those persons include a corporate entity, in particular a corporate entity authorised pursuant to the 2007 Act in relation to an activity which constitutes the conduct of litigation. I do not accept, however, as was submitted in Mr Marven’s skeleton argument (but not pursued in his oral submissions), that the Judge’s interpretation is a remarkable one and it would render CPR 46.5(6)(b)(v) otiose because an individual who is an “authorised person” would already fall within CPR 46.5(6)(b)(i) to (iv).[52]The Judge’s analysis is not remarkable in the light of the express provision addressing the position of companies and corporations in CPR 46.5(6)(a). Mr Marven submitted that CPR 46.5(6)(a) is merely stating, for the avoidance of doubt, that a litigant in person can include a corporate person and that CPR 46.5(6)(b) addresses the specific position in respect of lawyers generally. That submission would have greater force if CPR 46.5(6)(a) had stopped after the words “a company or other corporation” but it goes on specifically to provide an exclusion where the company or other corporation “is acting without a legal representative”. On Mr Marven’s approach, that exclusion ought properly to have been placed somewhere in CPR 46.5(6)(b) (presumably in the context of an authorised person in (6)(b)(v)). The wording of CPR 46.5(6)(a) is more consistent with the Judge’s approach that it is that sub-rule which is dealing exclusively with companies and corporations. Some further slight support for that conclusion may be seen in the difference between the words “acting without a legal representative in” CPR 46.5(6)(a) and “acts in person” in CPR 46.5(6)(b).[53]It is the fact that CPR 46.5(6) addresses distinctly and separately those legal representatives within CPR 2.3(1) which are corporations and those who are individuals that explains why there is no inconsistency between the two provisions. As Mr Sachdeva observed, it would be illogical for a corporation to be excluded from being a litigant in person under CPR 46.5(6)(a) but to be re-cast as a litigant in person under CPR 46.5(6)(b). There are numerous other references in the CPR to “legal representatives” where no such distinction is expressly made between corporations and individuals, and in those cases it is perfectly natural to read the references as including an authorised corporate legal representative within the definition in CPR 2.3(1).[54]Furthermore, the submission that Judge’s interpretation would render CPR 46.5(6)(b)(v) otiose because an individual who is an “authorised person” would already fall within (6)(b)(i) to (iv) is plainly wrong, and that was conceded by Mr Marven in the course of his oral submissions. Such persons potentially include legal executives, patent attorneys, trade mark attorneys and legal costs draftsmen: see Schedule 2 para. 4, Schedule 4 Part 1, and Schedule 5 Part 2 of the 2007 Act.[55]Finally, even if my interpretation of CPR 46.5(6)(a) and CPR 46.5(6)(b)(v) was incorrect, I would have concluded that EMW nevertheless falls outside CPR 46.5(6)(b) because, giving the words in parenthesis at the beginning of CPR 46.5(6)(b) a purposive interpretation, they include the situation where a solicitor member of a solicitors LLP is a litigant and the LLP is on the record as his or her legal representative as well as the situation where the solicitors LLP is both the litigant and acting as its own legal representative.[56]Any other interpretation would produce an illogical and indeed absurd contrast between the application of the Chorley principle to a solicitor partner of a partnership governed by the 1890 Act and to a solicitors LLP and its members. The Judge rejected that interpretation but I consider he was wrong on that point.[57]As Cranston J observed in R (Sword Services Ltd) v HMRC [2016] EWHC 1473 (Admin), [2016] 4 WLR 113 at [60], in ordinary parlance the terms “partnership” and “partners” cover both general and limited liability partnerships and their members. There is, as I have said earlier, no coherent policy reason for distinguishing between the application of the Chorley principle to partnerships governed by the 1890 Act and to LLPs. Accordingly, were I wrong in my interpretation of CR 46.5(6)(b) as confined to individuals, I would have held either by way of ordinary purposive interpretation or in exercise of the Inco Europe jurisdiction that the words in parenthesis at the beginning of CPR 46.5(6)(b) include the situation where a member of a solicitors LLP is represented by the LLP as well as where a solicitors LLP is both the litigant and the legal representative on the record.[58]In a final throw of the dice, Mr Marven submitted that, since the provisions of CPR 46.5(6) are expressed to be inclusionary and not exclusionary, a solicitors LLP which is a party to litigation and acts as its own legal representative is litigant in person even if it does not fall within those express provisions. It seems obvious, however, that if, as I have held, such an LLP is expressly excluded from the provisions of CPR 46.5(6) by virtue of being treated as acting with a legal representative within 46.5(6)(a) and (if wrong on that point) by virtue of falling with the words in parenthesis at the beginning of 46.5(6)(b), there is simply no scope left for arguing that the LLP is a litigant in person for the purposes of CPR 46.5 as a matter of ordinary language.

Conclusion

[59]For all those reasons I would dismiss this appeal.

Lord Justice Beatson:

[60]I agree.

Lord Justice Underhill:

[61]I also agree.

Cited in 4 later judgments