Kerry Underwood

LITIGANTS IN PERSON – NO RECOVERY OF FOREIGN LAWYER’S COSTS

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In Campbell v Campbell [2016] EWHC 1828 (Ch) (20 July 2016)

 

the High Court  held that the reference, to legal services in CPR 46.5(3)(b) (which sets out a litigant in person’s right to recover costs), does not allow recovery in respect of services provided by a lawyer qualified in a different jurisdiction.

 

Here the claimant, a litigant in person, instructed lawyers in a Jersey law firm (who were acting for him in related litigation in Jersey but were not practising as English solicitors) to assist in the English proceedings.

 

The court referred to Agassi v Robinson (HM Inspector of Taxes) (No 2) [2005] EWCA Civ 1507 (a case decided under the forerunner of CPR 46.5(3)), where the applicant was assisted by specialist tax advisers.

 

There the court held  that the costs of those advisers could not be recovered as disbursements, and also approved Tuckey LJ’s interpretation of “legal services” (in United Building and Plumbing Contractors v Kajla [2002] EWCA Civ 628) as “those provided by or under the supervision of a legal representative”.

 

It was not just a question of the nature of the services, but also the identity of the provider.

 

In reaching his decision, the judge noted that:

 

  • There was no material difference between the position of a lawyer qualified in a different jurisdiction and the specialist tax advisers considered in Agassi. Although the providers of the services, in each case, no doubt had valuable knowledge and expertise, they were not authorised to conduct litigation, and nor were they subject to the wasted costs jurisdiction of the court.

 

  • In the English proceedings, the Jersey lawyers were in the position of lay advisers so (as with a McKenzie Friend) their fees would not ordinarily be recoverable from the opposing party.

 

  • The use of lawyers qualified in a different jurisdiction to provide “legal services” in respect of English proceedings seemed far from the “unbundling of legal services” that Lord Woolf had in mind in his Access to Justice report.
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Written by kerryunderwood

August 19, 2016 at 7:31 am

Posted in Uncategorized

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