Bagshawe v The Lord Chancellor

An interim costs certificate for legal aid costs does not create an absolute, free-standing debt owed by the Lord Chancellor. It records an interim payment obligation arising under the statutory civil legal aid scheme and remains subject to that scheme, including a lawful deferral of payment under Civil Legal Aid (General) Regulations 1989, regulation 102.

Although an interim costs certificate may be enforced as if it were a judgment for payment of money, that does not make its recipient a judgment creditor in substance where the statutory payment obligation is no longer presently due. A writ of control cannot therefore be issued to enforce the certificate in those circumstances.

The appellant, a solicitor, sought a writ of control against the Lord Chancellor to enforce an interim costs certificate for £200,000 in respect of legal aid costs arising from four certificates issued to his client in 1994.

The certificate had been issued during a legal aid costs assessment. The appellant later submitted his final claim for payment, but a panel acting under regulation 102 of the Civil Legal Aid (General) Regulations 1989 deferred payment subject to conditions. The appellant did not challenge that decision by judicial review.

Master Yoxall refused the writ on the basis that the appellant was not a judgment creditor in substance. The appeal concerned whether that conclusion was legally correct.

1. Appeal dismissed. The Master’s order refusing the writ of control was correct as a matter of law.
2. The court proceeded on the basis that the interim costs certificate had been validly issued, that the issuing judge had jurisdiction, and that the certificate had not been varied, set aside, quashed or cancelled. It also accepted that, under CPR rule 47.16(2), an interim costs certificate includes an order to pay the costs to which it relates.
3. Under CPR rule 70.1(2)(a), a judgment creditor is a person who has obtained or is entitled to enforce a judgment or order. The certificate could arguably make the appellant a judgment creditor on its face. Further, PD47, paragraph 16.12 provides that an interim costs certificate may be enforced as if it were a judgment for payment of money.
4. Those provisions did not determine the appeal. The certificate represented a statutory payment obligation under the civil legal aid regime. It did not create an absolute debt independent of the legislation. The obligation remained subject to the statutory framework, including regulation 102 of the Civil Legal Aid (General) Regulations 1989.
5. By the time the writ was sought, the panel decision had deferred payment of the appellant’s legal aid costs until specified conditions were satisfied. The Lord Chancellor therefore had no present payment obligation. The certificate was of no effect for enforcement purposes, not because it had been formally cancelled, but because the statutory obligation it represented was not then due and payable.
6. The certificate had not strictly merged into the final legal aid certificate, but that distinction did not assist the appellant. The final certificate represented the whole amount certified as payable under the statutory regime, and the interim certificate did not shield £200,000 from regulation 102.
7. The Master’s failure to explain fully why the appellant was not a judgment creditor did not amount to a serious procedural or other irregularity under CPR rule 52.21(3). Since the order was legally correct, no injustice resulted. The court did not decide whether a writ of control could be issued against the Lord Chancellor before the panel decision.

• High Court (Queen’s Bench Division): The appeal from Master Yoxall’s order dated 14 May 2019 was dismissed. The refusal to issue a writ of control was upheld.