Jones v Geldards LLP

A solicitor who fails to advise on legal aid may be liable where the client establishes four matters: lack of prior awareness, absence of advice, a genuine likelihood that the client would have applied for and used legal aid, and a reasonable chance that funding would have been granted.

In assessing the interests of justice under the Access to Justice Act 1999, paragraph 5(2)(d) must be considered. Proceedings involving several witnesses and evidence requiring expert cross-examination may create a reasonable chance of legal aid, even where paragraph 5(2)(a) is insufficient. Loss is valued as a chance without artificial precision. The appeal was allowed and the fee claim dismissed.

Geldards LLP represented and advised Mr Jones in criminal proceedings under the Forestry Act 1967. After he had paid about £23,000, Geldards sued for the balance of its fees. Mr Jones counterclaimed for professional negligence, including failure to advise him about the availability of legal aid.

HHJ Chambers QC rejected the defences and entered judgment for Geldards for about £24,000. Permission to appeal was granted only on the legal-aid issue. The central questions were whether Mr Jones would have applied for public funding, whether he had a reasonable chance of obtaining it, and how any resulting loss should be valued.

Lord Neuberger gave the judgment, with Lord Justice Pill and Lord Justice Richards agreeing.

1. Disposition. The appeal was allowed. The first-instance decision could not stand, and the claim for the balance of Geldards’ fees was dismissed.
2. Four hurdles. The claimant had to establish, without any particular burden of proof being imposed, that he was unaware of the right to legal aid, had not been told or otherwise must have been told of it, would have applied for and used legal aid, and had a reasonable chance of obtaining it. The first two matters were resolved in Mr Jones’s favour. His later application for legal aid supported the conclusion that he would have applied.
3. Interests of justice. The judge had treated paragraph 5(2)(a) of Schedule 3 to the Access to Justice Act 1999 as the only relevant factor. Paragraph 5(2)(d) was independently material. The proceedings involved five defence witnesses, three prosecution witnesses and prosecution evidence from a person with significant expertise. It was therefore impossible to conclude that there was no chance of legal aid; Mr Jones had a reasonable chance. The later representation order reinforced that conclusion, but was not necessary to it.
4. Evidence and valuation. The representation order had been before the trial judge, although it had been produced imperfectly and had not been tested by cross-examination. The principles in Ladd v Marshall [1954] 1 WLR 1489 and Hertfordshire Investments Ltd and Bubb [2001] 1 WLR 2318 did not prevent its consideration, though caution was required. The loss was a loss of a chance, to be valued by assessing the prospects: Allied Maples Ltd and Simmonds and Simmonds [1995] 1 WLR 1602. A 50 per cent chance was appropriate. The Court of Appeal assessed the matter itself rather than remitting it because the sums involved and the likely value of a remitted hearing made that course disproportionate.
5. Hypothetical appeal costs. Possible liability for costs of a Crown Court appeal under the Criminal Defence Service Recovery of Defence Costs Orders Regulations 2001, regulation 4, as amended by the 2004 Regulations, was too speculative and was ignored.
6. Costs. Taking the overall view required by CPR 44, the court made no order for costs, including the appeal costs, and set aside the costs order below.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 1614: appeal allowed, claim dismissed, and the costs order below set aside. No order for costs, including the appeal.
• Cardiff Civil Justice Centre (HHJ Chambers QC) — judgment dated 24 July 2009: the defences were rejected and judgment was entered for Geldards for about £24,000, followed by further orders including an interim charging order.