Leeds City Council v Price & Ors

Under section 11 of the Access to Justice Act 1999, a costs order against a legally aided party is only the first stage of the statutory scheme. It does not itself impose liability on the Legal Services Commission. A costs order against the Commission may be made only in accordance with the Community Legal Services (Cost Protection) Regulations 2000. The receiving party must comply with the prescribed time limit, give written notice that payment by the Commission is sought, and serve the required documents. A High Court asked to enforce an order known to have been irregularly obtained, including through denial of natural justice, may decline enforcement. The enforcement procedure does not require the court to treat such an order as valid.

Travellers unlawfully parked caravans on land owned by Leeds City Council. The Council obtained possession orders, and the travellers’ appeals ultimately reached the House of Lords. Their appeal was dismissed on 8 March 2006, and a subsequent order provided for costs in accordance with section 11 of the Access to Justice Act 1999.

The Council did not comply with the prescribed procedures for seeking a contribution from the Legal Services Commission. It later obtained a costs certificate and secured an ex parte High Court order purporting to make the House of Lords order an order of the High Court and requiring payment by the Commission. Judge Behrens set that order aside. The Council appealed. The central issue was whether the High Court had to enforce the order or could refuse enforcement where the statutory procedures had not been followed and the Commission had not been heard.

Appeal dismissed. The High Court order setting aside the purported enforcement order was upheld.

1. Two-stage costs scheme. The court agreed with the explanation in R(on the Application of Gunn) v Secretary of State for the Home Department [2001] 1WLR 1634 that the section 11 scheme is a two-stage process. The first stage determines whether the legally aided party should pay costs. The second determines the amount, if any, payable by that party and whether the Legal Services Commission should contribute to the non-funded party’s costs under the regulations. The House of Lords order was only a stage-one order and did not impose liability on the Commission.
2. Regulatory preconditions. The court agreed that an order against the Commission could be made only in accordance with the Community Legal Services (Cost Protection) Regulations 2000. The conditions in regulation 5(3) were prerequisites. They had not been satisfied: there was no request under regulation 10(2), no timely request, no written notice under regulation 10(3)(c), and no service of the relevant documents on the Commission or its Director. The requirements enabled the Commission to address both the amount of costs and whether it was just and equitable for public funds to meet them.
3. Enforcement of an irregular order. The court stated that, even if the certificate had imposed liability on the Commission, the High Court was not obliged to enforce an order known to have been irregularly obtained. The requirements included basic natural justice, particularly the opportunity for the affected party to be heard. Practice Direction 40B did not compel enforcement. The High Court could decline enforcement or adjourn the process, leaving a fresh application possible if the position were later regularised.
4. Certificate and time limits. A certificate had to speak for itself. The wording of the bill and a reference to costs allowed against the Legal Aid Fund did not clearly impose liability on an unnamed third party that had not participated in the taxation. The court also distinguished the general extension criteria for lodging a bill of costs from the regulation 5(3)(b) test, where the sole question was whether there was good reason for delay. These observations were expressly recognised as going beyond what was necessary for disposal of the appeal.
5. Unresolved delegation issue. Without full argument, the court noted a possible issue whether the Clerk of the Parliaments’ powers had been delegated to the Clerk and Taxing Officer who issued the certificate. It did not decide that issue.

1. Court of Appeal (Civil Division). The Council’s appeal was dismissed. The court upheld the setting aside of the High Court enforcement order.
2. High Court of Justice, Leeds District Registry. Judge Behrens set aside an ex parte order which purported to make the House of Lords costs order an order of the High Court and directed payment by the Legal Services Commission.

Earlier proceedings in the same dispute had resulted in dismissal of the travellers’ appeal by the House of Lords, reported at [2006] UKHL 10.