Campbell v Campbell

For the purposes of CPR 46.5(3)(b), recoverable payments for legal services must relate to services provided by, or under the supervision of, a lawyer qualified in England and Wales. The lawyer must possess the expertise in English law and procedure needed to assist with proceedings in this jurisdiction.

A foreign lawyer who lacks that domestic qualification is treated as a lay person in relation to English proceedings. A successful litigant in person therefore cannot recover payments made for that lawyer’s assistance. This construction supports the policy that litigation assistance should be supplied by persons who are properly qualified, regulated and insured in this jurisdiction.

The appellant became a litigant in person during English Chancery proceedings. He continued to receive litigation assistance from a firm of Jersey advocates, principally from an advocate who was not then entitled to practise as a solicitor in England and Wales. The assistance included drafting correspondence and witness statements and advising on schedules and disclosed documents.

A Deputy High Court Judge held in [2016] EWHC 1828 (Ch) that services supplied by a lawyer qualified in another jurisdiction were not “legal services” under CPR 46.5(3)(b). The appellant challenged that interpretation. The issue was whether a litigant in person who obtains a costs order can recover payments made for work undertaken by a foreign lawyer.

1. Appeal dismissed. CPR 46.5(3)(b) permits recovery of payments reasonably made by a litigant in person for legal services relating to the conduct of the proceedings. Although the rule does not expressly restrict “legal services” to services provided by lawyers qualified in England and Wales, that restriction is implicit in the provision.
2. The authorities establish that legal services must be supplied by, or under the supervision of, a lawyer. In this context, the lawyer must also be someone who can be expected to possess the competence required for proceedings in England and Wales. A lawyer qualified in this jurisdiction satisfies that requirement. A foreign lawyer lacking such a qualification does not, because the relevant expertise is expertise in the law and procedure governing the proceedings.
3. The distinction drawn by the rules is not simply between lawyers and other professionals. A foreign legal qualification may relate to a legal system with materially different law and procedure. It also does not ensure that the provider is subject to equivalent domestic regulation or professional protections. For the purposes of English proceedings, the Jersey advocates therefore occupied the position of lay persons and did not provide “legal services” within CPR 46.5(3)(b).
4. This construction accords with public policy. Those supplying advice and assistance in connection with litigation in England and Wales should be properly qualified, regulated and insured in this jurisdiction. The court’s ability to limit costs to reasonable and proportionate amounts is an imperfect means of controlling assistance supplied by unskilled or unregulated persons.
5. The policy favouring access to legal advice and the “unbundling” of legal services did not justify a broader interpretation. CPR 46.5(3)(b) allows a litigant in person to recover the cost of assistance, including but not limited to advice, from a lawyer. It did not follow that assistance from a foreign lawyer was recoverable. The Deputy High Court Judge’s decision in [2016] EWHC 1828 (Ch) was correct.

1. Court of Appeal (Civil Division): In [2018] EWCA Civ 80, the court unanimously dismissed the appeal and affirmed the Deputy High Court Judge’s construction of CPR 46.5(3)(b).
2. High Court of Justice, Chancery Division: In [2016] EWHC 1828 (Ch), Mr David Foxton QC, sitting as a Deputy High Court Judge, held that services supplied by a lawyer qualified in another jurisdiction were not “legal services” for the purposes of CPR 46.5(3)(b).