Mohammadi v Shellpoint Trustees Ltd & Anor

A litigant is not a legally assisted person for costs-protection purposes while actively acting in person, even if seeking replacement legal representation and even if a legal aid certificate is later reinstated. The relevant question is objective: whether the litigant was receiving advice, assistance or representation under the statutory scheme. Once solicitors cease to act and that fact is communicated to the opposing party, the litigant ceases to be legally assisted if no replacement firm has been retained under legal aid. Reinstatement does not retrospectively prejudice third parties by restoring costs protection for the intervening period.

The appellant challenged an order made by Master Campbell, sitting as Costs Judge, concerning costs arising from lengthy landlord-and-tenant litigation. The principal issue was whether she remained a legally assisted person under the Legal Aid Act 1988 during periods when her solicitors had ceased to act, she acted in person, and her legal aid certificates were later reinstated. The second issue concerned the assessment of 75% of her costs awarded following an earlier Court of Appeal hearing.

The appeal therefore concerned both the proper statutory test for costs protection and the application of that test to the detailed bill.

1. Legal aid status. The appeal was allowed only to the limited extent that Master Campbell had included Part 3 of the respondents’ bill in the period for which the appellant lacked costs protection. During periods when she actively acted in person, she was not a legally assisted person within section 2(11) of the Legal Aid Act 1988, and consequently did not have the protection afforded by section 17(1).
2. The expression “acting in person” referred to taking an active step in the proceedings. The appellant’s intention to obtain alternative legal representation was irrelevant. The question was objective and did not depend on her state of mind or motivation. This approach followed the reasoning in Turner v Plasplugs Ltd [1996] 2 All ER 939 and Burridge v Stafford [2000] 1 WLR 927.
3. Where solicitors had ceased to act and that fact had been communicated to the opposing party, the litigant ceased to be legally assisted from the time of communication if no replacement firm had been retained under legal aid. Reinstatement of a discharged certificate did not retrospectively restore section 17 costs protection against opposing parties. The court expressed no conclusion on the separate relationship between the Legal Services Commission and the assisted litigant.
4. The statutory scheme remained governed by the Legal Aid Act 1988, pursuant to article 5(1) of the Access to Justice Act 1999 (Commencement No 3 Transitional Provisions and Savings) Order 2000. Parts 2, 6, 8 and 9 of the bill were properly treated as periods without costs protection. Part 3 concerned a period during which the appellant was represented under legal aid and should not have been included. The issue was remitted to Master Campbell to adjust the assessed sum if necessary.
5. The challenge to the assessment of 75% of the appellant’s Court of Appeal costs failed. Master Campbell had been entitled to use the available costs statement as the basis of the detailed assessment, and there was no sufficient basis for interference.

• High Court (Chancery Division): On appeal from Master Campbell’s order of 15 August 2007, the court upheld the governing legal principles and most of the assessment, but remitted the costs-protection calculation for reconsideration concerning Part 3 of the bill.
• Court of Appeal: In an earlier hearing, the appellant had obtained an order for payment of 75% of her costs. The High Court declined to disturb the subsequent detailed assessment of that amount.