MBR Acres Limited & Ors v Gillian Frances McGivern

In criminal legal-aid proceedings, the indemnity principle remains applicable unless legislation expressly disapplies it. Civil contempt proceedings are treated as criminal proceedings for the purposes of legal aid under Legal Aid, Sentencing & Punishment of Offenders Act 2012. Recovery between the parties is therefore limited to the prescribed legal-aid rates and maximums. The civil legal-aid exception in regulation 21 of the Civil Legal Aid (Costs) Regulations 2013 does not apply.

A privately agreed retainer cannot lawfully provide for topping-up of criminal legal aid. Private leading-counsel fees were irrecoverable where legal-aid authority had been refused and the underlying contempt application was straightforward and unexceptional.

The receiving party, a solicitor represented under a legal-aid certificate, obtained an indemnity-costs order after contempt proceedings brought by the paying parties were dismissed as totally without merit. Her bill claimed recovery at private-client rates and included fees for leading and junior counsel.

The preliminary points concerned whether recovery was limited to the sums payable under the legal-aid certificate and the Criminal Legal Aid (Remuneration) Regulations 2013, whether a private retainer could support higher inter partes recovery, and whether counsel’s fees were recoverable.

1. The receiving party’s solicitors were limited between the parties to the sums payable under regulation 8(2) and Schedule 4 of the Criminal Legal Aid (Remuneration) Regulations 2013. The prescribed rates and maximums could not be enhanced or topped up.
2. Although contempt proceedings may be civil or criminal in character, they are criminal proceedings for the purposes of Part 1 of the Legal Aid, Sentencing & Punishment of Offenders Act 2012. The court followed the broad construction of the Act adopted in Kings-Lynn & West Norfolk Council v Bunning and the conclusion in Liverpool Victoria Insurance Co Ltd v Khan.
3. The indemnity principle was not displaced in criminal legal aid cases. Section 28 of the Act authorised payments in specified circumstances but did not lift the indemnity principle. Regulation 21 of the Civil Legal Aid (Costs) Regulations 2013 supplied an exception for civil legal aid only.
4. The indemnity basis of assessment did not alter the statutory or indemnity-principle analysis.
5. The fees of leading counsel were not recoverable. The court preferred the paying parties’ construction of paragraphs 8.41–8.43 of the Standard Criminal Contract and was not satisfied that paragraph 8.43 authorised private instruction in High Court proceedings. In any event, the instruction of a KC was not reasonably justified where the contempt application had been considered straightforward and unexceptional.
6. Junior counsel’s fees might be recoverable, subject to the prescribed rates and maximums and appropriate scrutiny and adjustment of the solicitors’ fees. Directions were to be given for completion of the detailed assessment.