Burrows (t/a David Burrows), R (on the application of) v Legal Services Commission

Under section 15(4) of the Legal Aid Act 1988, “limitations” includes a ceiling on costs recoverable under a legal aid certificate, as well as limits on the scope or duration of representation. The power remains available where legal aid must be granted automatically for care proceedings under section 15(3C). A costs ceiling is not inherently irrational or an impermissible merits test. It disciplines expenditure of public funds and may be raised through amendment and appeal.

A solicitor represented a mother in care proceedings under section 31 of the Children Act 1989. Her legal aid certificate imposed a £5,000 costs limitation. The proceedings lasted longer than expected and the solicitor’s costs exceeded that sum. The Legal Aid Board refused to pay more. Mr Justice Stanley Burnton dismissed the solicitor’s judicial review application, holding that section 15(4) of the Legal Aid Act 1988 authorised costs limitations. The appeal concerned whether that construction was correct and whether imposing such a limit in mandatory, non-merits-tested care proceedings was irrational.

The appeal was dismissed unanimously. Lord Justice Dyson gave the first judgment, with the Master of the Rolls and Lord Justice Kennedy agreeing.

1. The word “limitations” in section 15(4) of the Legal Aid Act 1988 bears its ordinary meaning. It is wide enough to include a financial limitation, as well as a limitation on the scope or duration of representation. The statutory definition of representation in section 2(4) did not require a narrower construction.

2. The surrounding statutory provisions did not displace that meaning. Section 4(6) used the same general wording. Section 10(2), dealing with approval to exceed a prescribed limit for advice and assistance, showed that similarly broad wording could include financial limits. The regulation-making powers in section 34, including provision for remuneration, expenses and conditions, did not imply that the Board lacked a direct power under section 15(4). Regulations made under section 34 could not be used to construe the Act, although the relevant regulations were consistent with the statutory scheme.

3. The fact that representation had to be granted in care proceedings under section 15(3C) did not make a costs limitation irrational. The requirement removed a merits test for the grant of representation; it did not prevent the Board from controlling the amount of public expenditure. Advance costs limits provided discipline, encouraged reasonable and proportionate expenditure, and reduced the uncertainty and expense of later taxation or assessment.

4. The possibility that a limit might occasionally be exceeded before an amendment application was determined did not justify treating financial limits as irrational in every section 15(3C) case. Legal representatives could seek an increased limit and appeal an adverse decision to the legal aid area committee. The judicial review challenge therefore failed on both the wide and narrow grounds. Costs were to follow the event.

1. High Court of Justice: Mr Justice Stanley Burnton dismissed the judicial review application, holding that section 15(4) of the Legal Aid Act 1988 authorised costs limitations.
2. Court of Appeal (Civil Division): Dyson LJ gave the first judgment, and the Master of the Rolls and Kennedy LJ agreed. The appeal was dismissed.