Patten (t/a Anthony Patten & Co) v Lord Chancellor

An appeal under regulation 16 of the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 is confined to certified points of principle of general importance. Where regulation 16(7) makes the Queen’s Bench Division’s decision final, the Court of Appeal has no jurisdiction to entertain a further appeal. An application concerning delivery up or rectification of a court log may be a procedural incident of the costs proceedings rather than a separate claim. It therefore ends with those proceedings and cannot provide an independent route to appellate jurisdiction. In any event, a log-rectification application has no continuing relevance once the substantive costs appeal has finally concluded.

Anthony Patten, a solicitor, challenged the taxation of costs claimed under the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989. A determining officer and then a costs judge considered the claim. Three points were certified for a further appeal under regulation 16. Leveson J held that the appeal was confined to those points, subject to one unresolved matter, and his decision was reported at [2001] 3 All ER 886. Henriques J later treated the substantive appeal as concluded after the Lord Chancellor conceded the certified points and rejected attempts to raise further uncertified issues. The application before the Court of Appeal concerned permission for a further appeal and rectification of the court log.

Application refused. Lord Justice Rix held that regulation 16(7) made the decision of the Queen’s Bench Division judge on the second costs appeal final. Mr Patten therefore accepted that the Court of Appeal had no jurisdiction to entertain a further appeal.

1. The appeal was limited to the three points certified by the costs judge as points of principle of general importance, together with the one matter which had not been finally resolved below.
2. The application for delivery up and rectification of the Crown Court taxing log was merely a procedural incident of the costs proceedings. Once those proceedings had concluded, the application had no independent life and was also subject to the regulation’s finality provision.
3. Alternatively, rectification could have relevance only insofar as the log affected the merits of a substantive costs appeal. Since that appeal had finally ended before Henriques J, the correctness of the log was no longer relevant.
4. There was consequently no point of principle, practice or error capable of being brought before the Court of Appeal, and no jurisdiction to assist the applicant further.

The proceedings had ended on 14 June 2002. Permission to appeal was refused.

• High Court of Justice, Queen’s Bench Division: Leveson J determined the preliminary issues on 22 May 2001, holding that the appeal was confined principally to the three certified points; the judgment was reported at [2001] 3 All ER 886.
• High Court of Justice, Queen’s Bench Division: Henriques J determined the substantive appeal with two costs assessors. Following the Lord Chancellor’s concession on the certified points, he held that the substantive appeal had concluded and that uncertified points and the log application could not proceed.
• Court of Appeal (Civil Division): Permission to appeal was refused.