Wulfsohn, R (on the application of) v Legal Service Commission

A litigant in person may recover costs for time reasonably spent on work to which the costs relate, at the prescribed rate where financial loss is not proved. The two-thirds limit in Rule 48.6 is a cap on recoverable costs, not an automatic entitlement to two-thirds of the costs that would have been allowed to a represented litigant.

The cap does not include disbursements. Where the reasonable-time calculation exceeds the cap, the court may assess the likely represented costs on the available evidence, apply the cap, and add recoverable disbursements. The assessment should also reflect proportionality, complexity, importance and the need to use court resources fairly.

The applicant, acting in person, succeeded in judicial review proceedings against the Legal Service Commission concerning legal aid connected with possession litigation. Collins J awarded only £120 costs, principally for travel and copying, after treating the applicant as unable to recover time spent on research.

The applicant appealed, with permission granted by Dyson LJ. The Court of Appeal considered whether the costs order had correctly applied Civil Procedure Rules, Rule 48.6, and whether the court should remit the assessment or determine a proportionate figure itself.

1. Appeal allowed unanimously. Lord Justice Schiemann, with whom Lord Justice Rix agreed, held that the costs award of £120 resulted from a misapplication of Civil Procedure Rules, Rule 48.6.
2. Rule 48.6(4) entitled a litigant in person who did not prove financial loss to recover, for each relevant item of work, the prescribed rate for time reasonably spent. The first-instance approach, which excluded time spent on research and effectively excluded any claim for time, was therefore wrong.
3. Rule 48.6(2) imposed a ceiling. It did not confer a fixed entitlement to two-thirds of the costs that would have been allowed to a represented party. The ceiling was broadly two-thirds of the represented costs, while disbursements fell outside it.
4. The court declined to remit the matter to a costs judge because that course would generate disproportionate further expense. Applying the Civil Procedure Rules’ proportionality considerations, it assessed the likely represented costs at £15,000. The proceedings had involved numerous hearings, substantial documentation, complex regulations, and extensive work by the applicant. The applicant’s reasonable time, charged at £9.25 per hour, exceeded the resulting £10,000 cap.
5. The applicant was accordingly awarded £10,000 for time, plus £460 for copying, postage and travel: £10,460 in total. The court also rejected the suggestion that he had agreed to accept the earlier £120 figure.

• Court of Appeal (Civil Division): Allowed the appeal and substituted an award of £10,460 costs: [2002] EWCA Civ 250.
• Administrative Court (Collins J): Allowed the applicant’s judicial review claim but awarded him £120 costs. The Court of Appeal held that the costs assessment had misapplied Rule 48.6 of the Civil Procedure Rules.
• Earlier procedural steps: Permission for judicial review was refused on paper by Sullivan J and again by Harrison J. A prior appeal before Brooke LJ succeeded, and leave to apply for judicial review was granted. No citations were stated.