Masterman-Lister v Brutton & Co

An appeal constitutes separate proceedings for the purposes of the statutory costs-protection regime. Once the appeal has been finally determined, the court may make a costs order and refer the funded party’s liability and the non-funded party’s claim against the Legal Services Commission to a costs judge, even though the underlying action continues.

The application to the costs judge must be made within the prescribed three-month period. The costs judge may adjourn it pending final resolution of the underlying action. A jurisdictional issue affecting the Commission cannot be finally determined without the Commission being heard, so liberty to apply may be granted.

Both appeals had been dismissed. The remaining questions concerned the respondents’ costs and the operation of the statutory costs-protection regime where an appellant was publicly funded. The action against Mr Jewell and Home Counties Dairy Ltd had been compromised in 1987, while the action against Brutton & Co could continue.

Brutton & Co wished to preserve their ability to seek payment of their appeal costs from the Legal Services Commission. An application had to be made within three months of the costs order, but the underlying action might not be resolved within that period. The court therefore considered whether it should make an immediate costs order and referral, whether the costs judge could adjourn the resulting application, and whether the appeal itself amounted to finally determined proceedings.

1. The appeals were dismissed. The appellants were ordered to pay the respondents’ costs, subject to detailed assessment on the standard basis if not agreed. Lord Justice Chadwick gave the judgment on costs. Lord Justice Potter and Lord Justice Kennedy agreed.

2. The court would make an immediate costs order under section 11(1) of the Access to Justice Act 1999. The funded appellant’s liability and any application by Brutton & Co for payment by the Legal Services Commission were to be referred to a costs judge under regulation 10 of the Community Legal Services Costs Regulations 2000. The order was to cover applications under both section 18 of the Legal Aid Act 1988 and regulation 5 of the Community Legal Services Costs Protection Regulations 2000.

3. The respondents had to make any application against the Commission within three months of the order. That period could not be extended. If the Commission contended that an application was premature because the underlying action remained unresolved, the costs judge could adjourn the matter or refer the jurisdictional point for appellate guidance.

4. For this purpose, the relevant proceedings could be the appeal itself rather than the litigation from beginning to end. The appeal had been finally determined, so the continuation of the underlying action did not prevent the costs referral. The approach in General Accident Car and Life Assurance Corporation Ltd v Foster [1972] 3 All ER 877 was applied. R v Greenwich London Borough Council ex p Lovelace [1992] 1 QB 155 addressed a different problem and did not undermine Foster.

5. The jurisdictional point could not be finally determined in the Commission’s absence. The order therefore gave Brutton & Co and the Commission liberty to apply if an application under section 18 or regulation 5(2) was refused on jurisdictional grounds. Permission to appeal the earlier decision was refused.

1. Court of Appeal (Civil Division): The two appeals were dismissed. The court ordered the appellants to pay the respondents’ costs and referred the relevant costs questions to a costs judge, with liberty to apply on any jurisdictional refusal. Citation: [2003] EWCA Civ 70.

2. High Court, Queen’s Bench Division: The appeals arose from a decision of Mr Justice Wright. No citation or further account of the lower court’s order is stated in the supplied judgment.