Damian Delia Francois v London Borough of Waltham Forest

Under CPR 46.5(3)(b), a litigant in person may recover payments reasonably made for legal services relating to the proceedings. The services must be supplied by, or under the supervision of, a lawyer properly qualified, regulated and insured to provide assistance in the jurisdiction. Fees charged by an unregistered barrister who lacks a practising certificate do not fall within the rule, even where the work consists of legal advice or drafting rather than reserved legal activities. Recovery also depends on the indemnity principle: unpaid fees subject to a serious question about contractual liability cannot be recovered as payments reasonably made. A costs order may nevertheless be upheld where the court’s assessment fairly reflects the effect of a failure to serve a costs schedule.

The claimant, acting as a litigant in person, sought to recover fees charged by a barrister who lacked a practising certificate for part of the period in which he advised her and drafted documents. The defendant disputed recovery under CPR 46.5(3)(b). A costs officer initially allowed the fees, but Master Howarth later limited recovery to work undertaken while the barrister held a practising certificate and ordered the claimant to pay £500 in costs.

The claimant appealed. The substantive issue was whether fees charged by an unregistered barrister were recoverable under CPR 46.5(3)(b). A further issue concerned the Master’s costs order despite the defendant’s failure to serve a costs schedule in accordance with CPR 44 PD 9.5.

1. Appeal dismissed. The Master was entitled to limit recovery to fees for work undertaken while the barrister held a practising certificate.
2. CPR 46.5(3)(b), construed in light of United Building and Plumbing Contractors v Kajla, [2002] EWCA Civ 628, Agassi v Robinson (Inspector of Taxes) (No 2), [2005] EWCA Civ 1507, and Campbell v Campbell, [2018] EWCA Civ 80, is concerned with legal services supplied by or under the supervision of a lawyer properly qualified, regulated and insured to assist with litigation in England and Wales.
3. An unregistered barrister is not entitled to provide legal services as a barrister. The fact that advice and drafting are not reserved legal activities does not make fees for those services recoverable under CPR 46.5(3)(b). An unregistered barrister is to be treated, for this purpose, like a debt collector, tax adviser or foreign lawyer whose services do not qualify under the rule.
4. The court was not deciding whether a different result might follow where a litigant in person had actually paid a person reasonably believed to be a practising barrister, who was later found temporarily to lack a certificate through oversight. That issue was left open.
5. There was, in any event, a serious issue as to whether the barrister was entitled to charge for services apparently rendered as a barrister while unauthorised to act in that capacity. The claimant had made no payments, and the contractual arrangements and liability to pay had not been properly evidenced. CPR 46.5(3)(b) permits recovery of payments reasonably made, not unpaid sums whose enforceability remains seriously in question.
6. The Master’s order requiring payment of £500 for the May 2020 hearing was upheld. Although the defendant had breached CPR 44 PD 9.5(2) and (4), the breach was taken into account because the defendant had effectively capped its claim by seeking only the brief fee. The sum was fair and proportionate under CPR 44 PD 9.6.
7. The claimant was ordered to pay the respondent’s appeal costs, summarily assessed at £7,500.

• High Court (King's Bench Division): Master Howarth limited recoverable fees to work undertaken while the barrister held a practising certificate and ordered £500 costs for the May 2020 hearing.
• High Court (King's Bench Division): appeal dismissed; the Master’s substantive and costs decisions upheld.