Gillian McGivern v MBR Acres Limited & Ors

Section 30(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 disapplies the indemnity principle only insofar as legal-aid funding makes the Legal Aid Agency, rather than the successful party, liable for the lawyers’ costs. It does not by itself permit recovery above legal-aid rates.

However, a CFA lite can create a genuine contingent liability to pay private-client rates, while ensuring that the legally aided client never pays from personal funds. Where the solicitor is authorised to retain costs recovered from the opponent, that arrangement is lawful and a costs order at those rates complies with the indemnity principle.

The appellant, a solicitor, successfully defended a privately funded application to commit her for contempt of court. The High Court dismissed the committal application as totally without merit and ordered indemnity costs in her favour.

She had criminal legal aid and a CFA lite with her solicitors. It provided that they would seek inter partes rates of £400 per hour from the opposing party, but would not seek from her more than was recovered. The costs judge limited recovery to legal-aid rates. Sweeting J dismissed her first appeal in [2025] EWHC 2070 (KB).

The second appeal concerned whether the indemnity principle, sections 23, 28 and 30 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and the Standard Crime Contract prevented recovery under that CFA lite.

1. Appeal allowed. The court rejected the contention that section 30(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 itself disapplied the indemnity principle so as to permit recovery above legal-aid rates. The statutory fiction permits a legally aided party to recover despite the Legal Aid Agency being the person who pays the lawyers. It does not disapply the principle’s separate requirement that recovery must not exceed the successful party’s legal liability.

2. The court was bound by Willis v Redbridge Health Authority [1996] 1 WLR 1228. That decision could not be treated as per incuriam. The civil legal-aid legislation had expressly disapplied the different-amount aspect of the indemnity principle, but no equivalent general provision applied to criminal legal aid.

3. Sir Nicholas Underhill held, with whom Jeremy Baker LJ and Bean LJ agreed, that the CFA lite was decisive. It created a real, though contingent, liability for the appellant to pay her solicitors private-client rates if costs were recovered from the respondent. The fact that the appellant would never have to pay from her own funds did not make that liability unreal for the indemnity principle.

4. The CFA lite did not contravene section 23(1). Its purpose was not to require the legally aided client to pay for publicly funded services. Paragraph 8.10 of the 2017 Standard Crime Contract authorised the solicitors, under section 28(2)(b), to retain the excess recovered under a costs order over the Legal Aid Agency’s payment. It therefore also avoided any breach of section 28(2).

5. Regulation 9 of the Criminal Legal Aid (Remuneration) Regulations 2013 did not apply to High Court proceedings. The court did not determine the appellant’s alternative claim to recover the enhanced sum assessed by the Legal Aid Agency.

• Court of Appeal (Civil Division): Allowed the second appeal in [2026] EWCA Civ 1202 .

• High Court (King's Bench Division): Sweeting J dismissed the appeal from the costs judge in [2025] EWHC 2070 (KB) .

• Senior Courts Costs Office: Costs Judge Whalan held that recovery was limited to Schedule 4 rates in [2024] EWHC 1869 (SCCO) .

• High Court: Nicklin J dismissed the committal application, certified it as totally without merit, and ordered indemnity costs in the appellant’s favour in [2022] EWHC 2017 (QB) .