Floyd & Anor v Legal Services Commission

The three-month period for seeking a costs order against the Legal Services Commission under regulation 5 of the Community Legal Service (Cost Protection) Regulations 2000 is mandatory, subject only to the regulatory requirement that there be good reason for delay. That requirement is a precondition to the court’s jurisdiction to consider making an order. The Civil Procedure Rules and a practice direction cannot amend, vary or supplement the statutory scheme. A practice direction cannot confer a discretion to extend time where the regulations do not do so. Where no good reason for delay is advanced and no evidence supports an extension, the court should not remit the matter for a further opportunity to cure the defect.

The claimant obtained costs orders against a legally aided defendant in possession proceedings, including a section 11(1) costs order following an appeal to the Court of Appeal. She did not request an order against the Legal Services Commission within three months and later sought to pursue the claim in May and June 2009.

The Costs Judge held that he had no discretion to extend time because the Civil Procedure Rules did not apply to the regulatory time limit. The claimant appealed, arguing that the Civil Procedure Rules, including the court’s case management and relief-from-sanction powers, applied through the Costs Practice Direction. The central issue was whether the court could extend the time for a late application under regulation 5.

1. Appeal dismissed. The Costs Judge was correct to conclude that the Civil Procedure Rules did not assist the claimant.
2. The relevant jurisdiction arose under regulation 5 of the Community Legal Service (Cost Protection) Regulations 2000. The regulations made specific provision for the circumstances in which the court could order the Commission to pay costs. Those provisions prevailed over general procedural rules.
3. The Civil Procedure Rules and the Costs Practice Direction could not amend or vary the regulations. Practice directions were subordinate to the rules and could not legislate. Paragraphs 21.16 to 21.20 of the Costs Practice Direction merely repeated or summarised regulation 5. The suggestion in paragraph 23.5 that the court could extend time under rule 3.1 was wrong.
4. The requirement in regulation 5(3)(b) that the application be made within three months of the section 11(1) costs order, unless there was good reason for delay, was a precondition to the exercise of discretion. The court could consider making an order only after good reason had been established. This was consistent with the approach described in Gunn v Secretary of State for the Home Department [2001] 1 WLR 1634.
5. No good reason for the delay had been advanced. The claimant had made no application for an extension or relief from sanction and had filed no evidence explaining the delay. Even if the Costs Judge had possessed a discretion, remittal would not have been just because the evidential defect could not be cured by giving the claimant a further opportunity.
6. It was unnecessary to decide when time began to run, since the claim was late on either possible date and no good reason for delay had been shown. Costs submissions were to be made in writing within 14 days of the sealed order unless the parties requested an oral hearing.

• High Court (Queen’s Bench Division): Appeal from the decision of Costs Judge O’Hare dated 24 November 2009 dismissed.