Pearce v Ove Arup Partnership Ltd.& Ors

A legal aid certificate cannot ordinarily cover more than one originating process. The restriction in regulation 46(3) of the Civil Legal Aid (General) Regulations 1989 is intended to prevent a certificate funding multiple contemporaneous actions. It does not necessarily apply where one action is abandoned and replaced by a sequential action arising from the same dispute. In that situation, the regulation should be construed in light of its purpose and read as referring to proceedings “in existence at any given time”. The court may therefore decline to apply Bridgewater v Griffiths to sequential proceedings, while retaining its reasoning in relation to contemporaneous multiple actions.

Gareth Pearce appealed from Master Simons’s decision disallowing the entirety of a bill of costs. The bill covered work undertaken under one legal aid certificate in two proceedings against the same defendants. The first writ was served out of time and was replaced by a second writ, which proceeded to trial.

The Master considered himself bound by Bridgewater v Griffiths, reported at [2000] 1 WLR 524, and held that regulation 46(3) prevented recovery under one certificate for both actions. The central issues were the proper construction and purpose of regulation 46(3), and whether the certificate had been adopted only for the second action.

1. The appeal was allowed. Master Simons’s decision was reviewed and the matter was remitted to him for detailed assessment of the costs.

2. Regulation 46(3) of the Civil Legal Aid (General) Regulations 1989 limits a certificate to one originating process. The expressions “action, cause or matter” identify different methods of commencing proceedings. Applications made within the proceedings commenced by that process remain under the certificate. A further originating process requires a further certificate.

3. Regulation 51(b)(iii), which permits amendment of a certificate for other proceedings subject to regulation 46(3), supports the conclusion that the restriction is overarching. What cannot be done by amendment cannot be achieved by implication.

4. The court accepted the reasoning in Bridgewater v Griffiths insofar as it prevented one certificate being used for multiple contemporaneous actions. It differed from that decision in relation to sequential actions. The purpose of regulation 46(3) was to prevent a multiplicity of simultaneous claims, not to penalise solicitors where an action was abandoned and replaced by another arising from the same dispute.

5. The evidence showed that the solicitors had worked under the certificate in both actions and had not consciously elected to apply it only to the second action. The adoption or election argument therefore failed.

6. The effect of the rule was to deprive the solicitors and counsel of remuneration, rather than to deprive the claimant of legal aid. The court rejected the submission that this consequence defeated the statutory purpose of legal aid. The appeal was nevertheless allowed because the sequential nature of the proceedings placed them outside the purposive scope of the restriction.

1. High Court (Chancery Division): allowed the appeal from Master Simons’s decision and remitted the matter for detailed assessment.

2. Supreme Court Costs Office: Master Simons had disallowed the entirety of the appellant’s costs under regulation 46(3) of the Civil Legal Aid (General) Regulations 1989.