Pearce v Ove Arup Partnership Ltd.& Ors [2004] EWHC 1531 (Ch)

[2004] EWHC 1531 (Ch)Case No CH/2004/APP/20
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE SUPREME COURT COSTS OFFICE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/06/2004
Before
THE HONOURABLE MR JUSTICE PETER SMITHSITTING WITH ASSESSORS:COSTS JUDGE WRIGHTMR PETER TODD
Between
Gareth PearceAppellant(1) Ove Arup Partnership Ltd.Respondents(2) Remment Lucas KoolhaasRespondent(3) Office for Metropolitan ArchitectureRespondent(4) City of RotterdamRespondent
Mr Nicholas Bacon (instructed by Anthony Gold) for AppellantHearing Hearing dates: 15 th June 2004
Judgment

INTRODUCTION

[1]This is the judgment in the review by nominally the Claimant in this action, Gareth Pearce, of the decision of Master Simons on 23rd December 2003, when he disallowed all the costs submitted by the Appellant for the detailed assessment of his costs in the above action.[2]Master Simons granted the Claimant permission to appeal.[3]I say nominally, because the Appellant, the Claimant, has no interest in the outcome of this assessment; the interest is entirely that of the various firms of solicitors and Counsel who acted for him in the action.

BASIS FOR DISALLOWANCE

[4]The disallowance of the entirety of the costs was because the Master formed the view that the entirety of the costs were claimed contrary to the provision of regulation 46 (3) Civil Legal Aid (General) Regulations 1989. That regulation provides as follows:- “Scope of Certificates 46.(1) A certificated may be issued in respect of the whole or part of the proceedings and may be extended to cover appellate proceedings other than those mentioned in paragraph (2). (2) A certificate shall not be extended to cover proceedings in the House of Lords or on appeal from a magistrate’s court. (3) A certificate shall not relate to more than one action, cause or matter except in the case of:- … (e) Proceedings which under the act may be taken to enforce or give effect to any order or agreement made in the proceedings to which the certificate relates and for the purposes of this sub agreement proceedings to enforce or give effect to an agreement or order shall include proceedings in bankruptcy or to wind up a company”. … (e) Proceedings which under the act may be taken to enforce or give effect to any order or agreement made in the proceedings to which the certificate relates and for the purposes of this sub agreement proceedings to enforce or give effect to an agreement or order shall include proceedings in bankruptcy or to wind up a company”.[5]The Claimant in this matter had commenced proceedings (CH 1996 1927 “action number one”) against the four named Defendants on 22nd March 1996. That writ was marked not for service out of the jurisdiction.[6]A second set of proceedings against the same Defendants was issued on 30th September 1996 (action CH 1996 P 6040 “action number two”).[7]The writ in action number one was served on the First Defendant by a letter dated 19th July 1996. The letter purporting to serve the writ was dated 19th July 1996, but the writ was only served by hand on 22nd July 1996. That was outside the four month period for service of the writ and the first Defendant took that point by letter dated 29th July 1996.[8]Accordingly, rather than seek to renew the writ, the Claimant’s solicitors caused a further writ to be issued (the second writ), which was served on 30th September 1996.[9]The issue raised by regulation 46 (3) was that the Claimant’s solicitors were in effect claiming costs under both action number one and action number two under the one certificate. None of the exceptions applied, so that the Master determined that there was a breach of regulation 46 (3).[10]It is clear that the bill sought to cover all costs from the issue of the first certificate on 13th March 1995 down to the trial and the order for assessment made on the trial on 31 January 2002. Accordingly the learned Master felt constrained by the decision of Burton J in Bridgewater –v- Griffiths [2000] 1WLR 524 to determine that the costs were not recoverable because it was claimed in respect of two actions. He rejected a number of submissions (which were repeated before me sitting with my assessors) as to the basis for distinguishing Bridgewater.

FACTUAL BACKGROUND

[11]As I have said above, the Claimant had a Legal Aid Certificate issued on 13th March 1995 (number 01/01/94/64612/J). That certificate enabled him to commence proceedings in action for breach of contract and other causes of action within the same proceedings against the identified Defendants.[12]Action Number 1 had a short life, as I have set out above. Action Number 2 went through to trial despite various attempts by the Defendants to stop it. When the writ in Action Number 2 was served on 30th September 1996, notice of issue of the Legal Aid Certificate was served on the relevant Defendants. No such certificate was served in Action Number 1. I mention this because it is a point of significance according to the submissions of Mr Bacon, who appears for the Appellant.[13]Action Number 2 was dismissed on 7th March 1997, but the Claimant appealed that order and ultimately on 21January 1999, the Court of Appeal allowed the appeal ordering the Defendants to pay half the costs of the appeal. Thereafter the matter proceeded to trial on 31st January 2002, when the action was dismissed. The Claimant was ordered to pay the costs of the Second, Third and Fourth Defendants, such costs to be determined by the Costs Judge. An order also was made for the Claimants costs payable by the CLS fund to be determined by the Costs Judge. The Defendants, on 25th January 2002, issued an application for a wasted costs order against the Claimant and his legal advisors. That application was dismissed, with costs payable by the Defendants.[14]The Claimants liability for costs payable to the Defendants were assessed at nil on 14th May 2002, after a disputed hearing. At the same hearing an order was made for payment of the Second and Third Defendant’s costs out of the CLS Funds. Directions were thereafter given for an assessment of the Claimants costs which led to the hearing, the subject matter of this appeal.

REPRESENTATION

[15]The Claimant was represented by a number of different firms of solicitors. First McKenzie Persaud represented him up until 3rd March 1996. From 3rd March 1996 to 24th March 1997 the case was handled by Sheratte Calaeb & Co. From 24th March 1997 to 20th November 1998 the case was handled by Landau & Cohen (excluding the costs of proceedings in the Court of Appeal). From 20th November 1998 to August 2000 the case was handled again by Landau & Cohen, and finally, from September 2000 until now the case was handled by Anthony Gold.[16]The costs are considerable. All work was done under the one certificate; it being amended form time to time with the changing of solicitors. It is not suggested that the LSC was ever aware of the fact that two separate actions had been commenced under the aegis of the one certificate.[17]The bill of costs in issue in this case comes to a total of £278,005.14. The successive firms of solicitors in this case were all aware Mr Bacon conceded of the fact that the Claimant had commenced two separate proceedings and that there was only in force one certificate, which was progressively transferred to them as and when they became retained by him.[18]Absent an ex-gratia payment from the LSC or possible retrospective amendment of the certificate (neither of which is for consideration before me) if Master Simons’ order stands the Claimant’s solicitors will suffer catastrophic financial consequences. In the case of Laundau and Cohen the potential claw back from that term represents 10% of the firms turn over and could not be done without remortgaging their houses.[19]Counsel for the Claimant in the original action acted in this case from 1997 until the trial. The total fees of Counsel were £74,505.59 of which she has received £55,879.15. Counsel is therefore owed £18,626.44 and has the possibility of having to repay the sums received on account. Landau & Cohen have received £81,709.06 on. Anthony Gold has received sums on account and a liability to repay these, obviously will have a substantial impact on them although I have not been provided with any evidence in respect of that.[20]There is no criticism over the conduct of the case by the Claimants Solicitors, (subject to an assessment if allowed to proceed). Indeed, it is clear that there was a case justifying in bringing it to trial, bearing in mind the fact that the Court of Appeal overturned a striking out of Action Number 2 and a wasted costs application made by the Defendants failed, as I have set out above. Notwithstanding that the consequence of the order if it stands will deprive them of obtaining remuneration for work that they have done good faith.

BRIDGEWATER -V- GRIFFITHS

[21]As I have said above, Master Simons felt constrained by this decision. In that case the Plaintiff was granted a Legal Aid Certificate for proceedings against the Defendant for personal injuries and loss sustained from an accident. The writ with a legal aid certificate was lodged at court, was not served in time and expired. A second writ in respect of the same cause of action against the same defendant was issued and served and the Plaintiff served notice that she was Legally Aided, relying on the same certificate. Thereafter the Plaintiff instructed three different solicitors in succession and incurred substantial costs whilst unaware of the first writ. The action was settled by consent under an order, which provided for the payment by the Defendant of the Plaintiff’s costs of the action. Upon taxation the Defendant asserted that regulation 46 (3) precluded any recovery because the certificate could only relate to one action being the first in time and that since there was no certificate covering the second action, the Plaintiff’s solicitors were not entitled to payment. The basis was that there was no liability for the Plaintiff to pay her solicitors costs or entitlement of her solicitors to recover any costs and that by virtue of the indemnity principal, the Plaintiff would not be entitled to recover the costs of the second action from the Defendant, notwithstanding the consent order. The Taxing Master determined as a preliminary issue that although by regulation 46 (3) the legal aid certificate could only relate to one action, there was no requirement that that action be the first commenced and that the Plaintiff could elect the second as the one to which the certificate related, enabling her to recover the costs of the second action. On appeal, Burton J overturned that decision. Three reasons are set out in the head note, namely:- i) Regulation 46 (3) was an over-arching obligation which limited the issue of a certificate and required a fresh one to be issued in respect of each action regardless of whether it involved the same cause of action against the same defendant; that, although a certificate could authorise any number or nature of proceedings that were less than full action, it could not do so in more than one action; and that, where a plaintiff’s solicitor had notified the court that the plaintiff was legally aided by lodging a copy of the certificate with the court and had then issued proceedings, the certificate had been irrevocably adopted and relied upon in that first action and there could be no subsequent election to use it in a second. ii) There was no implied term in the consent order that the defendant would pay the claimant’s costs even if he were not legally aided and that they were not estopped from asserting the plaintiff was not legally aided since they did not acquiesce in the plaintiff’s mistaken assumption as to her legal aid. iii) That there was no presumption that a client who believed he had been granted legal aid should undertake or expect to be personally liable to pay his solicitor’s costs if for some reason, especially the error of his solicitor, there was no legal aid to pay, even though the client was successful in recovering the costs against the opposite party; that no such undertaking was established by way of any express or implied agreement or quasi-contractual obligation so that the plaintiff’s solicitors were not entitled to recover their costs from the plaintiff; and that, accordingly, the defendant was not liable to indemnify the plaintiff for those costs.[22]Mr Bacon submits that Bridgewater was wrongly decided. He submits as an alternative that Bridgewater can be distinguished on the facts and finally, he submits that the regulation should be read as including in it the phrase “in existence at any given time” so that provided there are only a sequence of differing actions there is no infringement of regulation 46 (3).[23]Finally, in a supplemental skeleton argument he submitted, based on the evidence in relation to action number one set out above, that there was never any election or adoption of the certificate for the purposes of action number one, so that the Claimant’s legal advisors only utilised the certificate for the purpose of action number two, so there is no circumstance justifying the invocation of regulation 46 (3).

JUDGMENT WRONG

[24]The argument that the judgment was wrong is based on the finding that there is no obligation on the part of the assisted person to pay any costs. Mr Bacon in his written submissions, submits, that the judgment was wrong because it failed to take into account the impact of regulation 107 B brought into force from April 1994. That permits a solicitor acting for a legally aided client to recover inter-parties more by way of costs than a solicitor is entitled to receive under the legal aid certificate. That has no application to the present case.[25]His second argument is based upon the statutory charge under section 16 of the Legal Aid Act 1988, which in effect has an obligation to pay for the purposes of the statutory charge. However, both of these submissions in my judgment overlook the fundamental point that it cannot be right that a client would have to pay personally for costs which he believed would be covered by a legal aid certificate, but is not so covered because of the incompetence of the solicitors. It seems to me that the solicitors would bear the consequences of the failure to address the proper construction of regulation 46 (3) and I cannot conceive of any circumstance whereby the client would be made to pay because of their failure to properly understand what the regulation meant. It would not have been a difficult exercise for the certificate to be replaced by a fresh certificate. I appreciate that there was no decision made available to the professions before the Bridgewater decisions, which was made in April 1999. After that date however, the position was clear. A fresh certificate could have been obtained from that date, but none was.[26]The reason for this is that none of the lawyers instructed by the Claimant realised that this was a point until Master Simons himself raised it on the hearing of the detailed assessment.[27]I come to the conclusion that there is no basis for suggesting that Bridgewater was wrongly decided for the reasons set out by Mr Bacon in his skeleton argument.

BRIDGEWATER DISTINGUISHED

[28]Mr Bacon submitted that Bridgewater could be distinguished because of the form of the new certificates introduced by the LSC. The LSC issue fresh certificates when amendments are made to an earlier certificate. He therefore submits that the existence of these fresh certificates mean that the case, at least from the date of the first CIS certificate can only apply to Action Number 2 and not Action Number 1, with the consequence that the regulation was not breached. This is an argument as to a matter of form, rather than substance. Although the form is the issue of a fresh certificate, it is clear that it all relates back to the original certificate. Thus the last in time certificate produced is still under the same original certificate number and records in the certificate summary all the previous changes of solicitor and changes to the certificate. It seems to me clear that all the work is done under one certificate and that is the certificate, namely the one issued on 13th March 1995 and that no fresh certificate for the purposes of Mr Bacon’s submissions has been issued since that date. I therefore reject his submission in that regard.

ELECTION /ADOPTION

[29]As I said above, Mr Bacon raised this in his supplemental skeleton. It is submitted by him based on the evidence of Mr McKenzie in a witness statement dated 8th June 2004. I have summarised this evidence above. The argument by Mr Bacon on behalf of the Appellants is as follows. Work done in anticipation of Action Number 1 is equally claimable under the second action if appropriate and reasonable. When the Action Number 1 writ was served no notice of the grant of legal aid was served on the Defendants and none was lodged at the court (CP Bridgewater). The work that was claimed was entirely in respect of the Action Number 2 even though it included work, which was done before the Action Number 2 was conceived. He submits therefore that the Claimant’s solicitors have adopted or elected to make a claim under Action Number 2 and not Action Number 1, so there is no error as regards regulation 46 (3). He bases his submission on the decision made by the Taxing Master to which I have made reference, which was overturned by Burton J on review. He overturned the Taxing Master’s decision on the facts. The basis is set out at page 529 where he says this:- “It seems plain that the certificate was irrevocably adopted, used and relied upon in the first action, and thus there cannot be a subsequent "election" to use it instead in the second action. Mr. Westcott, for the plaintiff, in his further submissions on the adjourned hearing submitted that there was no adoption of the certificate for the first action, or irrevocable election in that regard, unless and until there was what he called a funding element, but I cannot accept that because(i) the plaintiff's then solicitors were plainly acting under the certificate when they did the work on the first action, and lodged that certificate at court with the writ in that action;(ii) there was a liability to pay, and entitlement to recover, costs which arose as soon as the plaintiff's solicitors began work on the first action with the benefit of the certificate, so that there was, if such be necessary, a "funding element."”.[30]Mr Bacon submits that in the present case Action Number 2 was adopted, so there is no problem. I have great difficulty with that submission on the facts. The Claimant’s solicitors did work before the issue of the first writ in the supposition that those works would be payable by the LSC under the umbrella of the legal aid certificate that was issued on 16th March 1995. That work culminated in the issue of the first writ. Had that been served in time the action would have continued. It is true that the certificate was not lodged at court nor sent to the other sides solicitors, but to my mind that is to confuse matters. The Claimant’s solicitors became entitled to received remuneration from the LSC from the issue of the certificate, irrespective of these factors. They did work under Action Number 1. Second, they have sought to recover costs incurred from the issue of the certificate, including, it seems to me, costs which fall wholly within Action Number 1, namely the issue of the writ. That is a trivial amount, but triviality does not decide issues as to principle. The Claimant’s solicitors clearly carried out work under the certificate from its issue under both actions. It is true as Mr Bacon submits that the entirety of those costs are included in the global bill in the second action, but that does not affect the matter. They are all included in Action Number 2 because it is in that action that the order, which enabled them to seek their costs was made. It is not merely a question of those costs being claimable subject to an assessment by the Taxing Judge. For there to be an irrevocable adoption or “election” there must be some evidence to show that that is what was in the mind of the solicitors. I have no evidence to show that the solicitors adopted or elected to apply the legal aid certificate only to Action Number 2. Indeed the evidence such as it is, is to the contrary. First, they plainly intended it to be adopted to Action Number 1 because they did work under the certificate which would (but for the failure to serve properly) have culminated in the Claimant’s grievances being ventilated entirely in the Action Number 1. Second, as I have said, they have claimed costs, which can be wholly attributable only to the first action. Third, I have no evidence from Mr McKenzie, which shows that he went through this thought process. The reason for that is of course self-evident; it never occurred to him that he had to adopt or elect to apply the certificate to one of two actions. I do not see how there can be adoption or an election unless some step is taken by the party claiming the election or adoption with a consciousness that he is actually doing that. Mr McKenzie did not elect between two different actions; he (and the succeeding solicitors) continued with both actions under one certificate in the mistaken belief that there was nothing wrong with that.[31]I therefore reject the argument based on adoption/election as a basis for distinguishing Bridgewater.

CONSTRUCTION OF REGULATION 46 (3)

[32]The regulation clearly taxed Burton J when trying to understand what it meant. I found it equally taxing. Ultimately, he came to the conclusion that a legal aid certificate could not relate to more than one action was an overarching obligation. In order to understand how he came to that conclusion, it is necessary to set out his argument, the reasoning based on the submissions before him. That appears in his judgment at page 534 and following:- “As set out above, what is provided by regulation 46(3), with the irrelevant exceptions, is that "a certificate shall not relate to more than one action, cause or matter." At the end of the first hearing I indicated my provisional view that I was in Mr. Westcott's favour in respect of this proposition, but, as I have stated, I have now heard further submissions, and in particular the valuable contribution from Mr. Utley on behalf of the Legal Aid Board. I summarise the position at the conclusion of that first hearing as follows. 1. The standard form of legal aid certificate, naturally followed in this case, authorises the taking of "proceedings" against a named party as proposed defendant, usually, if not invariably, for a named cause of action. The proposition is that this would authorise a second action writ against such named party, provided that the proceedings continued to be for the same cause of action against the same party. It is not intended, nor would it be the effect of this proposition, to authorise within the construction of regulation 46(3) proceedings, or, insofar as permitted by the construction, a second action, against any other defendant than the one named in such certificate. 2. The reference in regulation 64 of the Regulations of 1989 that "where a certificate has been issued in connection with any proceedings, the assisted person's solicitor or counsel shall not receive or be party to the making of any payment for work done in those proceedings . . . except such payments as may be made out of the fund" and in regulation 70 to "such information regarding the progress and disposal of the proceedings to which the certificate relates as the area director may from time to time require" is in each case to "proceedings" and not to an action. 3. Reliance was placed by Mr. Post on section 151 of the Supreme Court Act 1981, being the definition section in what he submits to be similar legislation to the legal aid regulations. That section defines an action for the purposes of the Act of 1981 as "any civil proceedings commenced by writ or in any other manner prescribed by rules of court." It defines "cause" as meaning "any action or any criminal proceedings" and "matter" as meaning "any proceedings in court not in a cause." Therefore, if the definitions of the Act of 1981 apply to regulation 46(3) of the Regulations of 1989, then "matter" is irrelevant, "action" is described as meaning "proceedings" and "cause" simply means either a civil action or criminal proceedings. It must of course however be emphasised both that section 151 of the Act of 1981 is a definition section in a different Act and that there is no use in the Act of 1981, as there is in regulation 46(3) of the Regulations of 1989, of the wording "action, cause or matter." 4. It was pointed out on behalf of the defendant that if regulation 46(3) is to be construed so that a certificate can apply to more than one action, there would or might be a lacuna in the Regulations of 1989, because there is no provision for a requirement upon solicitors or counsel to report to the Legal Aid Board if, for example, within the overall confine of a certificate permitting "proceedings," one writ could be struck out for want of prosecution, as frivolous and vexatious or as statute-barred, and yet, without a further certificate, a fresh second writ could be issued. However, if this be so, then such a lacuna could easily be filled, and although Mr. Utley at the adjourned hearing contended that regulation 46(3) was intended to avoid the uncertainties of reporting, he did not suggest that there was not a general obligation to report which would be likely to be triggered in such a situation, arising out of one or more of regulations 66, 66A, 67 and 70 of the Regulations of 1989. 5. Mr. Post submitted that if within regulation 46(3) "cause" was to be construed as meaning proceedings and to include action, but to postulate the possibility of more than one action in the same cause, then the wording is superfluous, for the word action need never have been used. That may be so but in the light of Mr. Westcott's submissions I formed the preliminary view as follows.(i) There could and should be a purposive construction of regulation 46(3) to accord with the intention that "proceedings" were to be covered, which might consist of more than one action, in the light of the wording of the certificates which have been used with the Regulations of 1989, and the wording of regulations 64 and 70 of those Regulations, referred to above.(ii) The statutory wording could be read without undue strain as meaning "only one action, except that ('or') it is subject to the overriding provision that there must be no more than one cause." This provided a perfectly sensible meaning to the use of the word "cause" as meaning "proceedings" or "lis."(iii) I was persuaded by Mr. Westcott's submission that, even on Mr. Post's construction of treating the relevant definition as that in section 151 of the Act of 1981, the word "cause" would include an action, and, as any reference to criminal proceedings, which is the only other meaning indicated that section, fell to be disregarded as irrelevant for the purposes of the Regulations of 1989, so on the defendants interpretation the word "cause" (or the word "action") would be superfluous, as both meant the same. Consequently, I was left to choose between interpreting regulation 46(3) as meaning, because "cause" and "action" would thus be interchangeable, either that "a certificate shall not relate to more than one action, [action] or matter," or that "a certificate shall not relate to more than one action, except that it may do so provided that there is not more than one cause [i.e. proceedings or a lis, in respect of which the certificate has been issued against a particular defendant] or matter." Albeit that in neither case was the wording straightforward, it appearing that duplication was the fault in the former, and straining of language the fault in the latter, I was in favour of the latter. However, at the end of the adjourned hearing, notwithstanding the further submissions of Mr. Westcott, I am persuaded by the submissions of Mr. Utley, with which Mr. Post associated himself, that my provisional view was wrong. (1) With regard to the meaning of the word "proceedings" in the context of the Regulations of 1989, I was taken by Mr. Utley to the very helpful and relevant authorities of Hanlon v. The Law Society [1981] A.C. 124 and Littaur v. Steggles Palmer [1986] 1 W.L.R. 287. It is clear that "proceedings" in the context of the usual form of the certificates, and indeed of regulations 64 and 70 of the Regulations of 1989, means the particular legal application which is to be before the court and which is covered by the particular legal aid certificate. These "proceedings" can be, and were in those cases, something less than the full action: for example, there can be legal aid granted for a particular application within an action, such as an application for contempt. The proceedings which are thus governed by the certificate, and in respect of which there are then reporting obligations, are defined by the certificate, but in no way affect the interpretation of regulation 46(3), which is an over-arching obligation, however construed, limiting the issue of a certificate, and, upon Mr. Utley's construction, which I accept, meaning that whereas a certificate can authorise any number or nature of proceedings, it cannot do so in more than one action. (2) My attention was drawn by Mr.

(b) (iii) of the Regulations of 1989 which provides:

"The area director may amend a certificate where in his opinion . . . it has become desirable for the certificate to extend to . . . subject to regulation 46(3), other proceedings . . ."
The existence of this regulation obviously supports the proposition in conclusion 1 above, but in particular emphasises the over-arching nature of regulation 46(3), however it is to be construed, and shows that it is intended expressly to be a limiting factor upon what can otherwise be put in a certificate. Further, plainly, what cannot be done by amendment cannot be done by implication. (3) Crucially, I was persuaded that there is no duplication in the use of the word "cause" in regulation 46(3), but that it serves a perfectly valid purpose. Mr. Utley pointed out that whereas by Part V of the Legal Aid Act 1988, headed "Criminal legal aid," provision is made for legal aid in respect of criminal proceedings before a magistrates' court, the Crown Court, the Criminal Division of the Court of Appeal, etc., there is no provision made in respect of the High Court, such that the grant of legal aid with regard to, for example, a case stated from a magistrates' court to the Divisional Court, or in respect no doubt of extradition proceedings by way of application for habeas corpus to the Divisional Court and onward on appeal to the House of Lords, is dealt with under Part IV of the Act of 1988 headed "Civil legal aid." Thus, the Civil Legal Aid (General) Regulations 1989 with which we are concerned are the relevant regulations applicable to legal aid granted in such a criminal matter, and hence there is a justification for the use of the word "cause" to include not just a civil action but also such a criminal proceeding. Mr. Westcott accepts that legal aid in respect of such matters is indeed covered by such regulations, but he asserts that by virtue of their inclusion not in Part V but in Part IV of the Act of 1988, and thus in these Regulations, such proceedings are not criminal proceedings but civil proceedings, and hence would fall within the rubric "matter," as opposed to "action," still leaving no room for any purpose in the use of the word "cause" as being dedicated to "criminal proceedings." I am, however, satisfied that legal aid in respect of such matters is indeed in respect of "criminal proceedings," and albeit that they fall not within Part V but within Part IV of the Act of 1988 under the heading "Civil proceedings," they are certainly treated as criminal proceedings for all other purposes, such as the need in appropriate cases for a certificate of a point of law of general public importance or of a direct appeal from the Divisional Court to the House of Lords: see generally, R.S.C., Ord. 56 and Ord. 57, r. 1(8) and sections 1 and 15 of the Administration of Justice Act 1960. In any event even if such matters are not, as I consider they are, criminal proceedings, nevertheless the draftsmen of regulation 46(3) of the Regulations of 1989 would be entitled to include the word "cause" as well as "action" and "matter" to cover such proceedings, even if they are strictly not to be defined as criminal proceedings, in case they were not otherwise covered. Consequently, I revisit the "strained construction" and conclude that it is indeed strained and would result in a conclusion, from otherwise straightforward words, that there can be more than one action, notwithstanding the opening words that "A certificate shall not relate to more than one action," provided that there is only one cause of action, or perhaps provided that the second action does not contain any more causes of action, or against any other defendants, than are already covered by an existing certificate issued in the context of a first action. As Mr. Post put it in his skeleton for the purpose of the adjourned hearing:
"This construction would serve to elevate 'cause,' a word placed in the middle of a list of three similar words, to a predominant position governing the other two, which is an unnatural use of the English language."
However, as I am now satisfied that there is no duplication, there is no call to address the strain. Further, I am entirely satisfied not only that there is a straightforward construction, but also that even adopting a purposive attitude, on the one hand there is not the need, which I had previously considered there to be, to allow for the apparent inconsistency of the use of the word "proceedings," to which I have referred above, and on the other hand there is a purpose, namely that of controlling expenditure more strictly than by leaving it to the obligation to report. Mr. Post is right when he says further in his skeleton that:
"The proposed construction is not, in truth, a purposive one, because the literal meaning of regulation 46(3) is plainly in accordance with the purposes of the regulation. The only purpose the proposed construction would serve is the purpose of preventing the plaintiffs solicitors suffering loss."
With great reluctance, therefore, I am driven to reject all of Mr. Westcott's submissions, notwithstanding the sympathy of the court and the desire to assist to avoid the apparent injustice which I have mentioned. It remains to record the following in that context”. "where a certificate has been issued in connection with any proceedings, the assisted person's solicitor or counsel shall not receive or be party to the making of any payment for work done in those proceedings . . . except such payments as may be made out of the fund" "The area director may amend a certificate where in his opinion . . . it has become desirable for the certificate to extend to . . . subject to regulation 46(3), other proceedings . . ." "This construction would serve to elevate 'cause,' a word placed in the middle of a list of three similar words, to a predominant position governing the other two, which is an unnatural use of the English language." "The proposed construction is not, in truth, a purposive one, because the literal meaning of regulation 46(3) is plainly in accordance with the purposes of the regulation. The only purpose the proposed construction would serve is the purpose of preventing the plaintiffs solicitors suffering loss."[33]I have set it out in full because it is only when it is set out that the submission upon which Burton J came to the conclusion can be understood. It involves grappling with the fact that the rules use ambiguous language. Thus, 46 (3) says “a certificate shall not relate to more than “one action”, cause or matter…”. Thus, 46 (3) refers to three different items, an action, a cause or a matter. Elsewhere in the regulation reference is made to proceedings without identifying the nature of the proceedings. Thus under the exceptions various types of proceedings are referred to. There is no other part of the rules, so far as I have been able to discern, where the nature of the type of the proceedings is identified. Thus for example, under regulation 50 (3), reference is made to any proceedings in the County Court and proceedings in the High Court under order 112, rules 3 or 4 of the Rules of the Supreme Court or rules 101 or 103 of the Matrimonial Causes Rules.[34]Equally, paragraph 51 provides:- “51. The Area Director may amend this certificate where, in his opinion:- … (b) It has become desirable for the certificate to extend to … (iii) Subject to regulation 46 (3) other proceedings”. … (b) It has become desirable for the certificate to extend to … (iii) Subject to regulation 46 (3) other proceedings”.[35]Now it seems to me, that the phrase “subject to regulation 46 (3)” must have been intended to have cut down the power of the Area Director to amend the certificate for other proceedings. If it did not then the words subject to regulation 46 (3) are superfluous. It follows that as a matter of construction regulation 51 (b) (3) is predicated by an assumption that the only other proceedings are those set out in the exceptions to 46 (3). Burton J considered this supported the overarching nature of regulation 46 (3), as he said, “further, plainly, what cannot be done by amendment cannot be done by implication” (page 536). I agree with him in that analysis.[36]Equally as a matter of practice, I was told that in circumstances like this where the LSC is informed of a second action the practice is that a second certificate would be applied for. Now practice of course does not necessarily mean that the rules should be construed in accordance with that practice, but it is a good indication of how the structure of the rules is intended to operate.[37]As appears from the extract from Burton J’s judgment, he was initially attracted to the argument of the claiming party that 46 (3) should mean that there should only be one action except that there should be not more than one cause. This means that cause means proceedings. Thus he formed a provisional view in favour of the Claimant, although he acknowledged that it was a straining of the regulation. Equally, he provisionally accepted the claiming parties submissions that the arguments put forward by the paying party would mean that “cause” equalled “action”, so that there was a duplication. Having considered further submissions however, he changed his view. The reason he did that was that he was persuaded that the word cause meant criminal proceedings.[38]It is plain that Burton J (like me) found the exercise a difficult one.[39]Mr Bacon pointed out that the regulation is oddly phrased by the expression “shall not relate to”. He submitted that that was an odd way of putting it. He also drew to my attention the fact that under sub paragraph (f) there was an express provision dealing with enforcing action one, notwithstanding the prohibition 46 (3).[40]To my mind there is nothing in either of these submissions. I do not think that the phrase “relate to” is particularly odd, and there is a logic in allowing a legally assisted person the right to have legal aid to pursue the fruits of action one, even if that requires action two. Otherwise, a legally assisted person would enjoy a victory in pyrrhic terms every time he won if his source of funding was cut off at that stage. That seems to me to be perfectly logical and is on the basis that the enforcement is part of the original proceedings.[41]I have come to the same conclusion as Burton J as regards this part of Mr Bacon’s submissions, but by way of a different route. It seems to me the phrases “action, cause or matter” relate to the method of commencing proceedings. Thus under those regulations a writ was one way of commencing proceedings and became an action. Thus a cause would relate to a matrimonial cause and a matter would relate to a form of originating process such as an originating summons motion or petition. If one therefore concludes that the three words cover methods of originating process of proceedings, it makes sense.[42]I accept Mr Bacon’s submissions as to the purpose of the apparent limit. It was to ensure that a legal aid certificate could not be used to create a multiplicity of claims. It is designed to ensure that the legal aid is closely controlled by reference to one form of proceedings. If it relates to one form of originating proceedings, then any applications that are made in those proceedings are under the umbrella of the one set of proceedings, whether it be under an action or a matter or a cause. That deals with the difficulties posed and considered by Burton J of subsidiary applications in existing actions. If that is a correct analysis then 46 (3) is quite logical and makes it quite clear that only one originating process can be issued. Thus, take one example. Suppose a husband and wife carry on business in partnership, have shares in a limited company fall out and divorce proceedings are commenced. It is possible that there might be a matrimonial cause, a writ (an action) in the partnership action claiming dissolution and a petition (a matter) presented in the matter of the company. It seems to me that it is not possible to have those three sets of proceedings covered by one certificate.[43]There is another logical reason for that as well. If there is more than one set of originating process, it is necessary to have different certificates to ensure that the time spent by the solicitor is properly appropriated to the relevant action, as there may be differing results in the actions.[44]It seems to me that that is how the phrase “action, cause or matter” should be construed and in truth, meaning nothing more than proceedings, but making it quite clear to solicitors by reference to the method of originating proceedings that a fresh certificate is required for each originating process.[45]It follows that on this analysis more than one originating process is not permitted under the words of 46 (3).

CONTEMPORANEOUS OR SEQUENTIAL

[46]I am reminded by Mr Bacon that the purpose of the Legal Aid Act 1988 is to provide a framework whereby provision is made for advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means.[47]Mr Bacon submits that it is a basic tenet of a statutory construction that the provisions should be interpreted to give effect to the intention of Parliament; see R –v- Secretary of State for Health ex parte Quintavalle [2003] 2 WLR 692 at paragraph 8 per Lord Bingham. If one looks at the present scenario the disentitlement of the Claimant’s solicitors to costs because of the interpretation of the rules as set out in the Bridgewater case would appear, Mr Bacon submits, to negate the intention of Parliament.[48]I do not agree. The purpose of the Act was to provide Legal Aid for people who otherwise would not be able to afford litigation, but that provision is not in absolute terms. It is subject to compliance with the entitlement to Legal Aid in accordance with the regulations. This issue before me is merely one to address the rules and their meaning and effect. The decision in Bridgewater to disallow the solicitors costs does not amount to a depravation of the Claimant here of Legal Aid (after all he had his trial and lost); it deprives the solicitors and counsel of their remuneration because the rules have not been complied with. On this analysis there would have been no suggestion of them not recovering if an application for a fresh certificate had been made, in say, September 1996, consequent upon the decision to abandon action number one. It is the failure to apply for that fresh certificate on this analysis that has caused the problem, not the rule as construed by Bridgewater.

PURPOSIVE OF EFFECT

[49]I accept however, that the purposive of effect of regulation 46 (3) was intended to ensure there were not a multiplicity of contemporaneous actions. I do not consider that the purposive of effect was to apply the requirements of the rule where there had been a succession of actions arising out of the same dispute. There is no question of oppression of defendants by a multiplicity of actions where that happens. I am persuaded that applying this purposive effect to regulation 46 (3) there should be read into it the phrase after the words action, cause or matter “in existence at any given time”. I accept Mr Bacon’s submission that that meets the object and purpose of the regulation.[50]Nor does that cause an injustice. There is a far greater injustice caused if solicitors acting in good faith are found to have their work and remuneration retrospectively undone.[51]It follows that I therefore differ from Burton J’s decision in Bridgewater, but based on an argument, which so far as I can discern was not raised before him.[52]I therefore conclude that there ought to be a review of Master Simons’ decision in the light of my Judgment and the matter remitted to him for him to proceed with the detailed assessments.[53]A copy of this Judgment should be provided to the LSC as they indicated to the Appellant’s solicitors that they did not attend to appear in the appeal.