Leeds City Council v Price & Ors

Costs cannot be recovered from the Legal Services Commission except through the statutory scheme governing publicly funded proceedings. That scheme requires the relevant conditions and procedural safeguards to be satisfied. In particular, a party seeking an order against the Commission must give written notice and serve the prescribed documents on the Regional Director. A costs order made at the first stage, and a subsequent taxation certificate, do not themselves impose liability on the Commission unless they constitute an order under regulation 5(2) of the Community Legal Service (Costs Protection) Regulations 2000. An enforcement order obtained without notice is liable to be set aside where the applicant failed to make full and frank disclosure of a known dispute about enforceability.

The Council sought to recover £84,138.94 from the Legal Services Commission in respect of costs incurred in successfully defending an appeal by a legally aided party in the House of Lords. The House of Lords had made a costs order on 11 May 2006, and the Judicial Taxing Officer later issued a certificate dated 15 February 2007. The Council then obtained an order on 16 October 2009 making the House of Lords order an order of the High Court and ordering the Commission to pay the certified sum.

The Commission applied to set aside that order. The issues were whether the House of Lords order or taxation certificate required the Commission to pay, whether the statutory procedure had been complied with, and whether the without-notice enforcement application had been properly made.

1. The application succeeded. The order of 16 October 2009 was set aside in its entirety.
2. Section 11 of the Access to Justice Act 1999, together with the Community Legal Service costs regulations, establishes a staged scheme. The court determining the substantive proceedings deals with the costs order against the funded party. A second-stage determination addresses the amount payable and whether an order should be made against the Commission. In House of Lords proceedings, the relevant functions were exercisable by the Clerk to the Parliaments.
3. Regulation 7 of the Community Legal Service (Costs Protection) Regulations 2000 prevented an order against the Commission except in accordance with the regulations. Regulation 5(3) imposed cumulative conditions, including a request under regulation 10(2) within three months unless there was good reason for delay. A request seeking costs against the Commission had to include written notice of that fact, and the documents had to be served on the Regional Director.
4. The House of Lords order of 11 May 2006 was a first-stage order under regulation 9. It did not require the Commission to pay the Council's costs. The certificate of 15 February 2007 likewise did not constitute an order under regulation 5(2): it neither named the Commission as liable nor complied with the wording of that provision.
5. The Council had given no valid notice under regulation 10(3)(c), and had not served the Regional Director under regulation 10(4). The Commission therefore had not been a party to the taxation and had taken no part in the assessment.
6. The without-notice application of 24 September 2009 breached the Council's duty of full and frank disclosure. The court had not been told of the dispute concerning enforceability. Paragraph 1 of the resulting order imposed no liability on the Commission, while paragraph 2 imposed an unjustified liability for the application costs in the amount of the taxation certificate. The Council should pay the Commission's costs of the application, subject to argument.

Not stated in the judgment.