R v Legal Aid Board, Ex parte Edwin Coe (Edwin Coe , Ex parte)

Under regulation 51(a) of the Civil Legal Aid (General) Regulations 1989, a certificate may be amended retrospectively where an extension was applied for, understood and granted, but the certificate issued fails to record the Board’s actual decision. The solicitor’s fault in causing the error does not prevent correction. The power remains discretionary and may be refused where amendment would prejudice an assisted or unassisted party. Without such prejudice, refusal based solely on the mistaken view that no certificate error exists is a misdirection. The restrictive approach in Thew v Reeves should not be extended to an intrinsically illogical certificate.

Mr Moukarzel held a legal aid certificate limited to specified pre-defence work. In 1996 his solicitors applied for an increased costs allowance to deal with summons for directions and discovery, although they did not tick the form’s box requesting removal of the existing limitation. The Legal Aid Board granted an increased allowance but left the limitation in place, making the certificate inconsistent with the work considered and authorised.

The solicitors sought judicial review. Sullivan J held that the certificate contained a mistake within regulation 51(a) and that the Area Director could amend it retrospectively. The Legal Aid Board appealed. The central issue was whether an error induced by the application could nevertheless be a mistake in the certificate where the certificate failed to reflect the Board’s actual decision.

Simon Brown LJ delivered the leading judgment. Judge LJ agreed with his reasoning, and Tuckey LJ agreed for the reasons given in both judgments.

1. Disposition. The appeal was dismissed with costs. Permission to appeal to the House of Lords was refused.
2. Scope of regulation 51(a). The power in the Civil Legal Aid (General) Regulations 1989 is not confined to clerical or data-entry errors. A retrospective amendment may be justified where the need for amendment becomes apparent later. The court identified three necessary matters: the relevant extension must have been applied for; the Board must have understood and considered the application; and the Board must have decided to grant the extension. The certificate issued must then be inconsistent with that decision.
3. Application of the test. The request for £80,000 concerned summons for directions and discovery. The Board considered that request and ultimately granted £100,000. Retaining a limitation which precluded even service of the defence was inconsistent with the decision actually made. All the conditions were therefore satisfied.
4. Effect of solicitor’s fault. Responsibility for making a proper application and checking the certificate remains with the solicitor. However, fault is distinct from mistake. An error induced by the solicitor can still be an error in the certificate if the certificate does not record the Board’s actual decision.
5. Thew v Reeves. The majority decision in R & T Thew Limited v Reeves [1982] QB 172 was distinguished. That certificate made sense on its terms, although it did not expressly cover a counterclaim. The present certificate was intrinsically illogical because the increased allowance plainly related to work outside the stated limitation. The court regarded Thew as technical and said that its principle should not be extended. Wallace v Freeman Heating Co. Ltd. [1955] 1 WLR 172 remained the starting point where the relevant step had never been applied for or granted by necessary implication.
6. Discretion. Regulation 51(a) confers a power rather than an automatic duty. Amendment may properly be refused if it would prejudice the assisted or unassisted party. Where no such prejudice exists, refusal based on the erroneous conclusion that no mistake exists is a misdirection, and the power should ordinarily be exercised.

• Court of Appeal: The court dismissed the Legal Aid Board’s appeal in [2000] EWCA Civ 157, upheld the conclusion that regulation 51(a) could apply, and ordered costs.
• High Court: Sullivan J, on 21 July 1999, held that the certificate contained a mistake and could be amended retrospectively. The Legal Aid Board appealed.