Podstreshnyy v Pericles Properties Ltd & Ors

In a serious committal application, the respondent should have a proper opportunity to obtain legal representation and legal aid. Where a late application for legal aid makes an effective hearing impossible, the court may adjourn the hearing. The party responsible for the resulting wasted costs may be ordered to pay them in principle, with assessment deferred until the substantive hearing if the amount cannot yet be calculated accurately.

The claimant applied to commit the second defendant, Olita Sellers, to prison for alleged breaches of freezing orders made in February 2018. The application had been served in June 2017 and listed for hearing in a three-day window in December 2018. Ms Sellers appeared in person shortly after the hearing began and said that she had only very recently sought legal representation and legal aid.

The court considered whether the hearing should proceed, whether an adjournment was necessary to secure representation, and who should bear the costs wasted by the adjournment.

1. The committal application was extremely serious. It was right in principle that Ms Sellers should be represented by lawyers, and she was entitled in principle to legal aid for that purpose. The hearing was therefore adjourned to a date between 6 and 8 February 2019.
2. The court could not determine on the material available where responsibility lay between Ms Sellers and her solicitor for the failure to make an earlier legal-aid application. That was a privileged matter between them. The issue had to be considered as between Ms Sellers and the claimant.
3. The late application for legal aid had made an effective hearing impossible and had caused the costs of the day, or part of them, to be wasted. The claimant was therefore entitled in principle to recover the costs thrown away as a result of the adjournment.
4. An accurate assessment could not yet be made because the costs of the adjourned hearing also had to be known. The court ordered that the wasted costs would be payable by Ms Sellers to the claimant, but adjourned summary assessment until the hearing of the committal application.