Nebahat Evyap Isbilen v Selman Turk [2025] EWHC 841 (Ch)

[2025] EWHC 841 (Ch)Case No BL-2021-000365IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 08/04/2025
Before
SIR ANTHONY MANN, SITTING AS A JUDGE OF THE HIGH COURT
Between
NEBAHAT EVYAP ISBILENClaimant
Mr Rupert Cohen (instructed by the Government Legal Service) for Legal Aid AgencyMr James Counsell KC and Ms Charlotte Elves (instructed by Janes Solicitors) for DefendantMr Tim Benham-Mirando (instructed by Peters & Peters Solicitors LLP) for ClaimantHearing Hearing dates: 21 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 8 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Sir Anthony Mann :

[1]In these proceedings Mr Turk had a freezing order made against him which included a number of disclosure obligations. It was alleged that he had failed to make full disclosure and the claimant brought committal proceedings against him. Those proceedings were heard by me and they succeeded to a substantial extent ([2024] EWHC 565 (Ch)). I sentenced him to 12 months imprisonment. In those proceedings Mr Turk obtained criminal legal aid, as was his right. It is well established both that proceedings for contempt are technically civil, and that criminal, not civil, legal aid is available for them. The Legal Aid Agency has sought to recover the defence legal aid costs under the Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 (“the Recovery Regulations”) pursuant to a Recovery of Defence Costs Order (“RDCO”). This application raises a question which can be simply stated but not so simply answered – does the court have jurisdiction to order an RDCO under those Regulations in that sort of committal application? I am told that, so far as the lawyers in this case have been able to ascertain, this is the first time that such an order has been sought in the context of this kind of civil contempt case.[2]Mr Turk appealed the committal findings and sentence, and the appeal was allowed insofar as the sentence was suspended; otherwise the appeal was dismissed ([2024] EWCA Civ 568). Mr Turk was legally aided on that appeal as well, but the application to me for an RDCO was in respect of the first instance costs only (or at least that was the case by the time the matter arrived before me).[3]On this application Mr Rupert Cohen appeared for the Legal Aid Agency (“LAA”) and Mr James Counsell KC led for Mr Turk. I am grateful to them for their helpful guidance through the legislative minefield that it was necessary to traverse. Mrs Isbilen also appeared, represented by Mr Tim Benham-Mirando. He made points which supported Mr Counsell and therefore, somewhat remarkably in this litigation, supported Mr Turk. I expressed initial serious doubts as to whether he had locus to appear on this application but heard him de bene esse. The more I heard him and his reasons for appearing, the more I was convinced that he had no legitimate interest in this application. He claimed to have it by virtue of the fact that his client had a proprietary claim to the asset which the Agency invited me to treat as Mr Turk’s capital for the purposes of assessing his means even though that claim, if and insofar as it is good (it has not yet been determined) would be completely unaffected by any RDCO. That seems to me to demonstrate clearly that his client had no legitimate interest in this application. However, I allowed him to continue, and he made a few points with commendable brevity and which, where relevant, I have taken into account.[4]As well as raising the point of principle, this application also invites me to make the order if the LAA succeeds on the principle.[5]In what follows I will have to refer to a lot of primary and delegated legislation. Where it is necessary to refer to a provision but not its precise terms I will merely set out the effect of the provision so that this judgment does not become too cluttered.

The point of principle - the LAA’s case

[6]The LAA’s case follows a relatively straightforward and shortish path through the relevant legislation. In this exposition I emphasise relevant words to assist navigation.[7]It is common ground that Mr Turk’s entitlement to legal aid was criminal legal aid, notwithstanding the civil nature of the contempt proceedings, because of the terms of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Section 16 provides:
“16. Representation for criminal proceedings (1) Representation for the purposes of criminal proceedings is to be available under this Part to an individual if— (a) the individual is a specified individual in relation to the proceedings, and (b) the relevant authority has determined (provisionally or otherwise) that the individual qualifies for such representation in accordance with this Part (and has not withdrawn the determination).”
[8]Section 14 defines “criminal proceedings”. Omitting irrelevant matters, it provides:
“14 (1) In this Part “criminal proceedings” means— … (g) proceedings for contempt committed, or alleged to have been committed, by an individual in the face of a court, and (h) such other proceedings, before any court, tribunal or other person, as may be prescribed.”
[9]These committal proceedings fall within (h) because they fall within a class prescribed by the Criminal Legal Aid (General) Regulations 2013 (the “General Regulations”), made under the delegated power in LASPO:
“9. Criminal proceedings The following proceedings are criminal proceedings for the purposes of section 14(h) of the Act (criminal proceedings)— … (v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.”
It is common ground that that provision brings in committal applications for breaching court orders; and see the illuminating decision of Chamberlain J in The All England Tennis Club (Championships) Ltd v McKay [2020] 1 WLR 216 at para 4.[10]So it is those provisions which gave Mr Turk his legal aid in the first place. I do not need to set out the other requirements; he fulfilled them. It may be worth noting at this stage that there is no means testing for this form of legal aid in the High Court. If his submissions are correct then this, and committal for contempt in the face of the court, would seem to be the only instances where criminal legal aid is available without either means testing or contribution (or both).[11]Reverting to LASPO, payment for services and recovery of payment is dealt with in section 23:
“23. Payment for services (1) An individual to whom services are made available under this Part is not to be required to make a payment in connection with the provision of the services, except where regulations provide otherwise. (2) The regulations may, in particular, provide that in prescribed circumstances an individual must do one or more of the following— (a) pay the cost of the services; (b) pay a contribution in respect of the cost of the services of a prescribed amount; (c) pay a prescribed amount in respect of administration costs.”
[12]The LAA’s claim arises under the Recovery Regulations, which were also made under LASPO. Reg 4 describes their purpose:
“4. General These Regulations make provision for the relevant court to make a determination under section 23 of the Act [viz LASPO] (payment for services) that a represented individual is required to make a payment in respect of the cost of their representation in relevant proceedings.”
[13]Reg 2 (the definition regulation) describes “relevant proceedings”:
“relevant proceedings” means criminal proceedings before any court other than the magistrates’ court or the Crown Court”
The expression “criminal proceedings” is not defined in these Regulations but its meaning is central to the LAA’s case because if these proceedings are not “criminal proceedings” then they do not fall within the RDCO regime because they are not “relevant proceedings”. Mr Cohen submitted that the definition of criminal proceedings is to be found in LASPO because these Regulations are made under that Act and section 11 of the Interpretation Act 1978 means the definitions in LASPO should be read into the Regulations. Section 11 provides:
“11. Construction of subordinate legislation. Where an Act confers power to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they bear in the Act.”
[14]Turning back to the Recovery Regulations, Reg 5 imposes what seems to be an obligation on the court to make a determination of the amount of recovery:
“5.— Recovery of defence costs orders (1) Subject to regulations 7 to 11, at the conclusion of any relevant proceedings involving a represented individual, the relevant court must make a determination that the represented individual is required to pay— (a) the cost of that individual's representation in such proceedings; or (b) such proportion of the cost of that individual's representation in the proceedings as the relevant court considers reasonable, having regard in particular to the financial resources of that individual.”
That is what I am invited to do, and Reg 6 requires the court to give reasons for any determination.[15]The dispute of principle on this application turns on whether these proceedings are “criminal proceedings” within the Recovery Regulations. Mr Cohen’s case is simple. He says that one reads the LASPO definition provided by section 14 (h) when elaborated by Reg 9 of the General Regulations. That means that these proceedings are criminal proceedings for the purposes of LASPO, and that provides a definition for the purposes of the Recovery Regulations. That is how the Intepretation Act works in this context. Accordingly, these proceedings are “criminal proceedings” within the Recovery Regulations, that makes them “relevant proceedings” and the LAA is entitled to an RDCO.[16]Thus far in the reasoning I consider Mr Cohen is right. I record that both Mr Cohen and Mr Counsell addressed the question of the extent to which in various contexts contempt proceedings were properly characterised as civil proceedings or criminal proceedings, with authorities showing where the matter has been considered. Those authorities do not seem to me to be relevant. The question of principle turns on the applicability of a particular term in legislation –“criminal proceedings”. Mr Cohen relied on statutory definitions. Mr Counsell sought to interpret the legislation in a way which disapplied the statutory definition because of what he said were contrary indications in the legislation, as will appear.

The point of principle – Mr Turk’s position

[17]Mr Counsell accepted that on the face of it, and without more, that chain of statutory logic works. However, he says that there is material which demonstrates that the "contrary intention appears” and the Recovery Regulations in fact do not apply to these proceedings. What those Regulations are said to apply to is appeals only, which in the High Court would in practice be appeals from the magistrates and Crown Court only (presumably by way of case stated). That is said to come from a more tortuous route through the various Regulations made under LASPO going beyond the Recovery Regulations.[18]His journey starts with the Explanatory Note at the end of the Recovery Regulations. That says: “The Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 (“the Regulations”) provide that where an individual receives legal aid for representation under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c.10) in relation to criminal proceedings before any court other than the magistrates’ court or the Crown Court, the court hearing the proceedings must [make an order etc],” [Mr Counsell’s emphasis][19]That does not seem to me to get him anywhere at all. It is a generalised statement and one has to go to the wording of the Regulations themselves to see to what they apply. The real question is what is meant by “criminal proceedings” and one has to get that from the Regulations one way or another. Mr Counsell attempted to support his thesis by an averment that the purpose of the Recovery Regulations in requiring a contribution to be made was to discourage unmeritorious appeals, and claimed support for that from a note in Criminal Law Week – Issue 7 of 2005, in relation to what is said to be an earlier roughly equivalent piece of legislation. The note reads:
“As to recovery of defence costs orders, there is no doubting that the rationale underlying the legislation making provision for such orders was to keep the costs of criminal litigation down as much as possible, not merely by making provision for recovery of costs, but by encouraging defendants to plead guilty, and to do so at the earliest possible moment (why else is there no provision for such orders in the case of those dealt with in a magistrates’ court, or dealt with in the Crown Court only on committal for sentence?), and by discouraging appeals.”
When properly read and understood in its context, this note (whose authority is not stated) does not support Mr Counsell’s thesis at all, even leaving aside the fact that it refers to previous legislation and not the Recovery Regulations. His thesis is that the Recovery Regulations are designed specifically to discourage unmeritorious appeals, and not for any other purpose. However, the note does not appear in the context of a debate as to what the purpose of the former Regulations might be. It appears in the context of a consideration of an apparent Court of Appeal (Criminal Division) ruling (and therefore it was already in the context of appeals) about the importance of providing proper material for the making of an RDCO. In that context the note was distinguishing between meritorious and unmeritorious appeals, not between appeals and other forms of litigation.[20]Having started from the thesis that the Recovery Regulations (and their predecessor regulations) were intended to apply to appeals only, Mr Counsell then seeks to support that by pointing to the fact that in all the time of the previous regulations, and the Recovery Regulations, no court seems to have been asked to make an RCDO in the context of High Court civil contempt proceedings (ie contempt proceedings for breaching a court order). The LAA did not suggest otherwise. In my view while that may be true, it is of little assistance. It does not help in the relevant exercise, which is construing the Regulations.[21]He also pointed to King’s Lynn West Norfolk Borough Council v Bunning [2015] 1 WLR 531 as being significant because he submitted that it was only in that case, decided after the Recovery Regulations came into force, that the availability of legal aid in civil contempt proceedings in the High Court was available. This is said to demonstrate that the Recovery Regulations were applicable to appeals only.[22]This case in no way supports this thesis. It does not acknowledge for the first time that legal aid was available in civil contempt proceedings such as these. It in fact demonstrates the contrary – that legal aid was available before that case and before LASPO. What the case sought to resolve was the mechanism for applying under LASPO, and it determined that for the purposes of LASPO the relevant legal aid was criminal legal aid, not civil legal aid; contrast the previous regime where the proceedings were quasi-criminal but the legal aid was civil legal aid – see paragraph 6. This sort of debate is of no assistance in deciding the questions of statutory interpretation that arise in this case.[23]Then Mr Counsell got on to more relevant territory, pointing up the effect of Recovery Regulations Reg 8, which undoubtedly deals with appeals. It is in the listed exceptions (Regs 7 to 11) which are exceptions from the obligation to grant an RCDO in Reg 5:
“8. Exceptions: acquitted individuals (1) Subject to regulation 17, the relevant court must not make a determination under these Regulations in relation to a represented individual where— (a) the individual was before the relevant court to appeal against one or more convictions; and (b) in respect of every conviction the relevant court allowed the appeal, unless the relevant court considers it reasonable in all the circumstances of the case to make a determination under these Regulations in relation to the individual.”
[24]He submitted that this makes it plain that the Recovery Regulations were dealing with appeals only. In support of that he relied on the fact that there was no reference to first instance civil contempt proceedings and it would be anomalous to apply an exception where a criminal appeal is wholly successful but not to apply it in the analogous case where a resistance to a civil committal application is wholly successful. The answer to that potential anomaly is said to be that the Recovery Regulations do not apply to first instance proceedings; otherwise Parliament would surely have created a similar express exception for a wholly successful defendant in a committal application.[25]While it might just be thought that this raises a question which needs considering, it certainly does not make it plain that the whole order refers only to appeals. It certainly makes it plain that the Regulations apply to what I will call true criminal appeals, (which is clear enough anyway) but it says nothing about exclusivity. That is not sufficient to displace the presumption created by the Interpretation Act. The alleged anomaly does not strengthen Mr Counsell’s case. The alleged anomaly needs to be treated with care. Its effect would be mitigated in the case of civil contempt cases by the availability of a costs order against the unsuccessful claimant so if the totally successful defendant were the subject of an RDCO then those costs would be recoverable as adverse costs and no detriment would be suffered. Furthermore, the true nature and extent of the anomaly would require considering and comparing the position of a legally- aided defendant in first instance proceedings. No-one embarked on that exercise. In addition, one can certainly say that if Parliament had really intended the Recovery Regulations to apply only to appeals then that would surely have been made apparent in the definition section, rather than having it become apparent(a) by inference from(b) a very specific exemption.[26]Mr Counsell pointed to the Practice Direction (Criminal Proceedings: Costs) [2013] EWCA Crim 1632, where Part 6 deals with “Contribution orders and recovery of defence costs orders”. The heading to paragraph 6.2 reads: “6.2 Recovery of defence costs order on appeals” (his emphasis) Mr Counsell said that that showed that the Practice Direction envisaged that RDCOs are to be determined in appellate proceedings only. I do not consider this to have any real force. A Practice Direction cannot trump the true meaning of a statutory instrument, and in any event it is apparent that the whole Practice Direction is referring to criminal proceedings more strictly so called or in proceedings deriving from them. Part6.1 deals with “Contribution orders in the Crown Court”, and Part6.2 deals with other courts in which contribution orders might be appropriate, which is appeals. Hence its heading. Civil contempt proceedings are not within the purview of the Practice Direction at all, so the reference to appeals is not a significant pointer to the Recovery Regulations (which in its terms is relevant only to courts other than the magistrates and Crown Court) being concerned only with appeals in such cases.[27]Thus far, therefore, I consider that Mr Counsell has failed to establish that the “contrary intention appears” so as to displace the effect of the Interpretation Act in importing the LASPO definition of “criminal proceedings” into the Recovery Regulations. If the matter stopped there then Mr Cohen would succeed and I would have to consider making an RDCO. However, Mr Counsell went on to pray in aid other pieces of allied legislation which he said presented a contrary picture.[28]I was not shown any authority which demonstrated that an inquiry as to whether any contrary appearance for the purposes of the Interpretation Act can be apparent from legislation other than the legislation under consideration. At first sight it would seem to me to be odd that such process should be allowed. One would have thought that each piece of legislation, whether primary or subordinate, should be largely self-contained for these purposes, although the enabling statute for subordinate legislation would be likely to be additional legitimate available material. Mr Cohen drew attention to the oddity of relying on other legislation, but did not go so far as to say the process was inadmissible. Accordingly, while expressing my doubts, I will consider Mr Counsell’s other legislative paths. It may be that the fact that they all involve instruments made under LASPO assists him slightly.[29]At this point Mr Counsell turned to Regulations 7 and 8 of the Criminal Legal Aid (Determination by a Court and Choice of Representative) Regulations 2013 (the “Determination Regulations”), which is another part of the raft of regulations made under LASPO, all of which came into force as the same time as the Act (1st April 2013). The route to those provisions starts with LASPO. Under LASPO section 16 criminal legal aid is made available if “the relevant authority” has so determined – see section 16(1)(b) above. The “relevant authority” is the person authorised by sections 18, 19 and 20 of the Act to make the determination – see subs (5).[30]Section 18 gives the Director of the Legal Aid Agency authority to determine whether an individual qualifies for legal aid “except in circumstances in which a court is authorised to make the determination under regulations under section 19”. One therefore has to see in what circumstances the court is so authorised which takes one to section 19, which in turn takes one to regulations:
“19 Determinations by court (1) Regulations may— (a) provide that a court before which criminal proceedings take place, or are to take place, is authorised to determine whether an individual qualifies under this Part for representation for the purposes of criminal proceedings of a prescribed description, and (b) make provision about the making and withdrawal of such determinations by a court.”
[31]In order to find out where it is that the Court makes a determination one turns to the Determination Regulations. So far as the High Court and Court of Appeal are concerned the answer lies in Regs 7 and 8:
“7. — Determinations by the High Court (1) On the application of an individual, the High Court may make a determination under section 16 of the Act as to whether an individual qualifies for representation for the purposes of criminal proceedings before the High Court in relation to an appeal by way of case stated from a decision of the magistrates’ court or the Crown Court. (2) On the application of an individual, or of its own motion, the High Court may make a determination under section 16 of the Act as to whether an individual qualifies for representation for the purposes of proceedings before the High Court, or proceedings before the Supreme Court on appeal from the High Court, described in— (a) section 14(a) to (g) of the Act, other than proceedings under paragraph (1); or (b) regulation 9(r) of the General Regulations. 8. — Determinations by the Court of Appeal (1) On the application of an individual, or of its own motion, the Court of Appeal may make a determination under section 16 of the Act as to whether an individual qualifies for representation for the purposes of any criminal proceedings before the Court of Appeal, or criminal proceedings before the Supreme Court on appeal from the Court of Appeal. (2) A determination made in accordance with paragraph (1)— (a) must not be made until service of an appeal notice in respect of the proceedings has taken place; and (b) may specify the stage of the proceedings at which the determination is to take effect.”
[32]The effect of that interaction is that the High Court is the determining authority for many applications in that court – heads (a) to (g) under section 14. However, for civil contempt proceedings such as the present the High Court is not the determining authority because the availability of criminal legal aid comes from LASPO section 14(h) (see above), and the list of cases in which the High Court is the determining authority under Reg 7 stops at (g) (which is contempt in the face of the court). For these proceedings, therefore, the High Court is not the determining authority, and therefore the Director is. That is what happened in the present case – the Director provided the authorisation.[33]Mr Counsell sought to say that these Regulations, and particularly (for our purposes) Regulation 7 were some sort of gateway into a regime where an RDCO can be made. He pointed to a discussion in Blackstone’s Criminal Practice 2025 at D32.9 which he said directly connected the making of Representation Orders under Regulations 7 and 8 of the Determination Regulations and the ordering of RDCOs made under the Recovery Regulations: “Provision for the grant of legal aid in the High Court (for instance on an appeal by way of case stated), Court of Appeal and Supreme Court is made by the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013. The merits test is deemed to be satisfied in these courts under reg. 21 of the Criminal Legal Aid (General) Regulations 2013. [Regulations 7 and 8 set out] In the higher courts there is no means test as to financial eligibility. The duties of these courts to make costs orders are contained in the Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 (SI 2013 No. 511). They do not apply to those under 18 years of age or those on 'qualifying benefits' or with assets and incomes below the specified limits (regs. 7, 9 and 10). Where any such court is considering the making of a recovery of costs order, it must have regard to the extent to which the Crown was successful (R (Baybasin) v Woolwich Crown Court [2015] EWHC 1327 (Admin))” (Mr Counsell’s emphasis)

[Regulations 7 and 8 set out]

[34]This seems to be the start of his argument that Reg 7 not only does what it does on its face, but it also shows that only appeals in the High Court are within Reg 7. However, I do not see where this passage, with its emphasised sentence, gets him along his road.[35]Then he relied on remarks made by Chamberlain J in the All England case at paragraph 27: “… it is regulations 6, 7 and 8, and those Regulations alone, that confer power on courts (the Crown Court, High Court and Court of Appeal respectively) to make representation order. As respects the High Court, there is power to make such an order in the types of proceedings mentioned in regulation 7 and no others. Contempt proceedings, other than for contempt in the face of the court, are not covered by that Regulation” (Mr Counsell’s emphasis)[36]I am afraid I simply fail to see how that passage helps him. The case involved a consideration of a different point (who was to be the authorising person) and the sentences extracted merely describe the effect of Regulation. They do not go beyond that.[37]Mr Counsell sought to analyse the cases in which the High Court was entitled to make a determination under Reg 7 in order to show that they all must be appeals, because there is no other way in which the proceedings can have got there, leaving aside section 14(g) cases for the moment. All the cases involved means testing at first instance. That, he submitted, demonstrated that the jurisdiction to make an RDCO in the High Court must be similarly limited, ie it must be limited to appeals. Section 14(g) (committal for contempt in the face of the court, for which the High Court was the determining authority), which admittedly did not inevitably involve an appeal, did not affect this conclusion because (as I understand the argument) it was treated as a criminal contempt. Via this route Mr Counsell sought to say that Determination Regulation 7 was a sort of gateway to the Recovery Regulations and therefore to an RDCO.[38]I confess that I found the argument very hard to follow, but whatever it may be I do not consider that it works for Mr Counsell. The quest is for material which amounts to a contrary indication to the otherwise plain application of LASPO’s definition of “criminal proceedings” in the Recovery Regulations. What Determination Regulation 7 does is indicate who is the determining authority for various kinds of proceedings. That is its purpose, and it does not operate on any form of prior assumption; nor does it give rise to any inference about what is to happen in other Regulations (such as the Recovery Regulations). The fact that the High Court has power to make a determination in some cases and the Director in another says nothing about the cases in which proceedings are validly brought in the High Court where they are within the statutory definition of “criminal proceedings”. In any event, Mr Counsell’s thesis would seem to be undermined by the fact that the High Court has power to make the determination in cases of contempt in the face of the court, which, when heard, would not be an appeal.

The point of principle - conclusion

[39]All in all, therefore, there is nothing in these Determination Regulations which would provide a contra-indication to the availability of an RDCO in committal proceedings for breach of a court order. Mr Counsell advanced a few policy-related reasons why it might be justifiable for RDCOs not to apply in civil contempt proceedings, but since there is no initial statutory justification for excluding them it is unnecessary to consider those reasons. This maybe, as Mr Counsell says it was, the first time that such an order has been applied for in these circumstances, but that does not affect the conclusion reached as a process of interpreting the Regulations. He also advanced what he said are costs anomalies if the LAA was right in terms of differences in terms of costs recovery and costs caps when compared with proceedings in other courts. Again, I am not convinced about the anomalies, but in any event they do not displace the clear interpretation answer to the question of principle. In any event, if there are anomalies, it is for Parliament or the Civil Procedure Rules Committee to resolve them, not the courts, as observed by the Court of Appeal in Secretary of State for Transport v Cuciurean [2022] EWCA Civ 661.

The recovery amount

[40]The LAA invited Mr Turk to complete a form as to his means, and that disclosed that he owned a property in Pennsylvania known as 2807 Eagle Nest Lane, Nazareth, PA. The form valued it at £190,000, and expressly claimed 100% of the ownership with no other person owning a share of it. No other assets were disclosed, nor was any income other than an allowance from his father. The form ended with a signed declaration as to its truth. In answer to subsequent queries raised by the LAA, Mr Turk’s solicitors disclosed that the property was used as a residential property by his uncle, that there was no mortgage or tenancy agreement and it was subject to a worldwide freezing order. He was said to be unable to afford a valuation and was unsuccessful in getting a desktop valuation.[41]The LAA obtained two online valuations of the Pennsylvania property, the mean of which was £449,000 odd. Based on that valuation the LAA initially sought an order in the sum of £432,000, being the costs thought to have been incurred to that date. However, there has since been a form of dispute about the level of costs incurred (which is a cap under the relevant regulations) and it has been agreed between the parties that I should treat the sum of £390,000 as being the level of costs incurred for the purposes of the hearing before me. That is the sum now sought.[42]In his skeleton argument first served on or about 8th January 2025 Mr Counsell indicated that Mr Turk believed that his uncle was entitled to a beneficial interest in the Pennsylvania property by reason of financial contributions made to the purchase price of the property and refurbishments to it. He said that Mr Turk expected to be able to provide evidence to this effect from the uncle and contractor who carried out the works, but that evidence would not be available before 13th January 2025. As at the date of the hearing nothing was provided by Mr Turk. The averment made by Mr Counsell was directly contrary to the contents of the form filled in by Mr Turk (I was told that was done under the supervision of his solicitors), and the content of the supplemental answers given afterwards (via his solicitors). In the light of the view that I had formed of Mr Turk’s evidence on the main application it is hard to avoid the conclusion that the information about the uncle and the builder, presumably supplied to Mr Counsell by Mr Turk, was not honestly given by Mr Turk.[43]Mr Turk’s form was correct in asserting that the Pennsylvania property was subject to a freezing order in the main proceedings. Mrs Isbilen claims to be the beneficial owner of it. Mr Counsell relied on both those factors in resisting the making of any order against Mr Turk.[44]The Recovery Regulations themselves do not prescribe how a contribution is to be calculated, but they do list a series of exceptions which take out various people (such as children) and amounts (Reg 10), and a more generalised exception based on unreasonableness (Reg 11). Reg 10 provides:
“10.— Exceptions: assets and income (1) Subject to regulation 17, the relevant court must not make a determination under these Regulations in relation to a represented individual who has none of the following (a) capital exceeding £3,000; (b) equity in the individual's main dwelling exceeding £100,000; and (c) gross annual income exceeding £22,325. (2) For the purpose of paragraph (1), where an individual resides in more than one dwelling, the court must decide which dwelling is the main dwelling.”
[45]“Capital is defined in Reg 2:
““capital” means the amount or value of every resource of a capital nature;”
[46]Reg 11 provides another exception relied on by Mr Councell:
“11.— Other exceptions (1) Subject to regulation 17, the relevant court must not make a determination under these Regulations if it is satisfied that— (a) it would not be reasonable to make such a determination, on the basis of the information and evidence available; or (b) requiring a represented individual to make a payment in respect of the cost of their representation in relevant proceedings would, owing to the exceptional circumstances of the case, involve undue financial hardship. (2) Where the relevant court, in accordance with paragraph (1), does not make a determination in relation to a represented individual it must give reasons for not making such a determination at the conclusion of the proceedings.”
[47]Mr Counsell seeks to say that the Pennsylvania property should be excluded from the assessment because of the freezing order. His argument is that the “capital” referred to in Reg 10 should be treated as property which is available (or accessible or realisable) for discharging the debt, and property which is subject to a freezing order, and indeed subject to a conflicting proprietary claim, does not qualify as any of those. To exclude the property would be consistent with the assessment regime under other Regulations made under LASPO, namely the Legal Aid (Financial Resources) Regulations 2013 and the Criminal Legal Aid (Contribution Orders) Regulations 2013 (again made under LASPO).[48]The former (Financial Resources) has a Part 3 dealing with means testing for legal aid representation in the Magistrates’ Court. When assessing an individual’s income the relevant person is to disregard “any income with which the individual is restrained from dealing by order of the High Court or Crown Court” - Reg 21(3A). Reg 34(3)(a)) is a similar provision dealing with legal aid for representation in the Crown Court..[49]The latter Regulations (Contribution Orders) deals with contributions towards legal aid costs in the Crown Court under sections 16 and 23 of LASPO. Reg 5 mirrors Reg 4 of the Recovery Regulations. The Director, who assesses the amount of the contribution, has to calculate the amount of the individual’s disposable income, and under Reg 11(2)(a) he/she excludes “any income with which the individual is restrained from dealing by order of the High Court or Crown Court”. There is a similar exclusion under Reg 28(3)(b) in relation to disposable capital.[50]Mr Counsell submitted that in the absence of any methodology for assessing capital under the Recovery Regulations I should adopt that of the other Regulations just referred to and ignore the Pennsylvania property because it is subject to the freezing order. If that is done then Mr Turk’s capital does not exceed the £3,000 threshold. That would accord with “reality” because the asset is not available to discharge the civil debt which would otherwise arise (Recovery Regulations Reg 20). The same point was made by Mr Benham-Mirando.[51]I do not accept these submissions. The Recovery Regulations are one of a set of Regulations all made under LASPO, and it would have been easy for the Lord Chancellor (who made all the regulations) to have introduced the freezing order qualification into the Recovery Regulations had it been thought appropriate that that should happen. It is to be assumed that the omission is deliberate. It may be partially explained by the fact that, unlike at least the means testing under other regulations, it is being done after the event. It is understandable that when assessing means for legal aid at the stage that the engagement occurs (pre-trial) it is thought right to leave non-available assets out of account. That does not necessarily apply to an assessment of contributions after the event, when accommodation can be made for the non-availability (see below).[52]Nor, as a matter of principle, should the other (unadjudicated) claims to the property affect whether an order should be made. In this case the individual has claimed that the asset is his, and the determination should go ahead on the footing that he is right about that. He has disclosed a resource “of a capital nature” (which, it should not be forgotten, is the definition in the Recovery Regulations) and it retains that nature notwithstanding the freezing order.[53]Mr Counsell also relied on the “Other exceptions” appearing in Recovery Regulations Reg 11. That Regulation provides the unreasonable- and hardship-based exception (above). Mr Counsell submitted that Mr Turk was entitled to the benefit of both those qualifications (not reasonable to make a determination and undue financial hardship). His first point sought to bring back in his interpretation point above. That fails as a factor under this head too. It cannot be unreasonable, or exceptional hardship, to apply a Regulation according to its terms just because it is being applied in accordance with its terms. More is required..[54]His second point involved another comparison with the regime applicable to assessment of means testing entitlement and contributions in other courts, being courts exercising a criminal jurisdiction. He pointed to different methods of assessment under regulations applicable to the Magistrates and Crown Courts which sometimes ignored capital, or capped it in relation to main residences, or excluded freezing order restrained assets (the Financial Resources Regulations Regulation 13(2)(c), and Regulations 18, 21(3A), 31 and 34(3)(a); and Contribution Regulations Reg 28)). He submitted that that meant that the absence of similar ring-fencing in the present case would mean that Mr Turk would sustain undue financial hardship and an RDCO would be unreasonable.[55]There is nothing in this point. Some of the contrasts do not apply. The mere fact that other regimes applicable in other courts, which might be more favourable to defendants than the RDCO regime is no basis for saying that the application of the RDCO regime is unreasonable or would give rise to undue hardship. No “exceptional circumstances” were urged on me in this case, and they do not exist anyway.[56]Accordingly Regulation 11 does not assist Mr Turk.[57]I therefore turn to consider what order I should make on the basis of the proper interpretation of the Recovery Regulations and on the facts of this case. Subject to a consideration of the effect of the freezing order and competing claims to the property I would make an order in the amount of £390,000 identified above. That is less than the apparent value of the Pennsylvania property. The only proper valuation evidence of that property is that identified above. Mr Turk has not produced his own. It is not his main dwelling so the first £100,000 does not fall to be ignored.[58]However, it is still necessary to consider the effect of the freezing order and proprietary claims. The determination of an RDCO is not an appropriate forum for deciding the competing proprietary claims. So something has to be done about them because it would be unjust to enforce a contribution if the asset on which the contribution is based turns out to be not owned by the individual after all; and it could be said to be unjust if the contribution were enforced in relation to a property which cannot be realised for some time even if it is owned by the defendant. However, the answer is not to say that there should be no contribution. That would hardly be rational, particularly where there is a competing claim which is deeply suspect as the claim by the uncle is (though that does not apply to Mrs Isbilen’s claim).[59]The practical answer to the conflicting positions arising out of this is to make a determination which provides that the order cannot be enforced until after the freezing order is lifted and until after Mrs Isbilen’s claim is determined. I would not introduce any qualification in respect of the purported claim by the uncle because I am able to conclude, and do conclude, that that is contrived, as is demonstrated by the fact that it was not originally relied on, was flagged in Mr Counsell’s skeleton argument, but has not been elaborated. Mr Cohen also proposed that the claim by Mrs Isbilen be catered for by giving liberty to apply to discharge the order if and to the extent that Mrs Isbilen establishes her beneficial interest, with a stay until then.[60]Mr Benham-Mirando, but not Mr Counsell, seemed to say that such flexibility was not open to the court on this application. I consider that it is, and that I should exercise it. A degree, but only a degree, of flexibility is provided by Recovery Regulations Reg 6(3):
“(3) A determination under these Regulations may provide for immediate payment of the full amount payable in respect of the determination, or for periodic payment of specified instalments.”
That does not of itself provide a basis for the suspension or adjustment which would adequately provide for what I would consider necessary to provide for a contribution but also protect Mr Turk’s legitimate interests by way of suspension and liberty to apply. The legitimate interests of both the LAA and Mr Turk could be catered for by adjourning these proceedings until the fate of the freezing order and Mrs Isbilen’s claim are determined, but that would technically leave the parties not knowing the amount of the contribution until then; and it is also unnecessary. Mr Turk’s obligation to contribute should be decided now so far as it can be. In my view the same result as would arise on an adjourned hearing can be achieved by making a determination now, but suspending enforcement until the freezing order and Mrs Isbilen’s proprietary claims are sorted out, and giving the liberty to apply anticipated above. The jurisdiction for achieving that lies in CPR 3.1(1)(m) – the power to make an order to further the overriding objective. I consider that that provision can be invoked because these proceedings are still civil in technical nature, notwithstanding that the legal aid available is criminal legal aid (so arranged by statute) and that certain criminal safeguards apply in the proceedings (for example, the standard of proof). The civil nature of these proceedings, with engrafted criminal concepts, has long been recognised in authority and it does not seem to me that the fact that the contribution is ordered under the Recovery Regulations alters the civil nature. Accordingly the CPR apply and CPR 3.1(1)(m) can be invoked.

Final conclusion

[61]In the light of all that I determine that Mr Turk shall contribute the sum of £390,000 in respect of his costs of defending the committal application brought against him, but the order shall be suspended until the removal of the freezing order and the determination of the proprietary claims of Mrs Isbilen, and Mr Turk shall have liberty to apply to vary the order in that event so that his obligation to pay shall not extend beyond the proper value of his equitable interest in the property (if any).