Michael Earl Wilson v John Forester Emmott

A solicitor acting in person does not qualify for the exception to the litigant-in-person costs regime merely because he is a director or employee of a company whose resources assist with the litigation.

The relevant analogy with a partner depends on a financial stake in the business and the diversion of time that would otherwise be devoted to that business. Vague assertions of possible remuneration linked to the company’s success do not establish the necessary stakeholder interest. The court upheld the finding that the solicitor was a litigant in person and was limited to the prescribed hourly rate.

Mr Wilson appealed against the Master’s decision on detailed assessment of costs arising from successful committal appeals. The issue was whether, although acting in person as an English solicitor, he fell within the exception in CPR 46.5(6)(b) for a solicitor represented by a firm in which he was a partner.

Mr Wilson was a director and employee, but not a shareholder, of Michael Wilson & Partners Ltd, a BVI company. The Master held that the company’s use of its resources did not amount to representation and that Mr Wilson had no sufficient financial stake to be analogous to a partner. The central issue was whether that conclusion involved an error of approach.

1. Appeal dismissed. Mr Wilson was a litigant in person for the purposes of CPR 46.5(6)(b) and was confined to recovering £19 per hour. Appeal costs of £285 were payable to Mr Emmott, subject to the condition stated in the order.

2. The Master decided the matter on the evidence and was entitled to reject the submission that Mr Wilson came within the exception. The Master accepted that the analogy with a partner could be considered, even though the judgment did not determine the wider construction issues concerning the meaning of “partner”, “represented by” or “firm”.

3. The principle underlying the partner analogy is that the person has a financial stake in the business and is diverting time from work that would otherwise benefit that business. A director and employee with no shareholding is not in the same position as a partner merely because company resources are used in the litigation.

4. Mr Wilson’s assertions that fees and cash flows generated by other employees might improve his remuneration were vague and unsupported. They did not establish a stakeholder interest or a measurable loss arising from the litigation. The Master was therefore entitled to give that evidence no weight.

5. The court expressly left open whether the exception could be invoked by analogy as a matter of law. The appeal was resolved on the factual finding that the necessary analogy had not been made out.

• High Court (King’s Bench Division): appeal from the order of Master Rowley dated 28 June 2017 dismissed. The Master’s conclusion that Mr Wilson was a litigant in person was upheld.