Mohamadi v Shellpoint Trustees Ltd and another [2009] EWHC 1098 (Ch)
Chancery Division Briggs J sitting with Master O’Hare and Mr David Harris, solicitor. 22 May 2009
When a legally assisted person’s solicitors has ceased to act, without another firm being retained under a legal aid certificate, and that fact has been communicated to the opposing party, then from that moment the litigant ceases to be a legally assisted person for the purposes of the Legal Aid Act 1988 (LA 1988).
Howard Lederman (instructed by Bell Dening) for the defendants. The claimant appeared in person.
The claimant tenant had been engaged in protracted litigation with the defendants. The claimant received public funding for her litigation by means of three legal aid certificates over a period of twelve years. Two of the certificates had gone through the process of being granted, discharged, reinstated and finally discharged again.
During the periods between successive discharges and reinstatements the situation regarding the claimant’s legal representation was changeable. Initially she had informed the defendants’ solicitors that she was representing herself. She later retained solicitors and then changed to different solicitors. The claimant was granted 75% of her costs under an order made by a costs judge.
The judge also held that for any period of time that the claimant was acting for herself she was not a “legally assisted person” within the meaning of LA 1988 and therefore did not enjoy the costs protection afforded by ss 17 and 18. The claimant appealed, contending that where a legal aid certificate was discharged, but later reinstated rather than replaced by a new certificate, the effect for all purposes was as if it had never been discharged.
The defendants contended that the claimant was only to be regarded as a legally assisted person during such period as she was in receipt of legal assistance from solicitors pursuant to a legal aid certificate.
Briggs J:
The Court of Appeal decisions in Turner v Plasplugs Ltd [1996] 2 All ER 939 and Burridge v Stafford [1999] 4 All ER 660 showed that the dates upon which or periods during which a litigant was a legally assisted person were not rigidly governed by the dates of commencement and discharge of a legal aid certificate.
His lordship held, first, during any period when she was in fact acting in person, the claimant was not a legally assisted person, even though she was actively seeking to reinstate for her benefit the provision to her of legal advice, assistance and representation under LA 1988 in connection with her pending proceedings. Further, it made no difference that, on two occasions after she acted briefly as a litigant in person, the claimant later obtained the services of a new firm of solicitors under her reinstated certificates.
Second, the claimant was not a legally assisted person for the purposes of s 17 during any period after a firm of solicitors which had ceased to act for her had communicated that fact to the defendants’ solicitors, even if a period of time then elapsed before she took any active steps as a litigant in person.
Thus, if and to the extent that the defendants incurred costs during such a period (for example in preparing and issuing an application after being notified that the claimant’s then solicitors had ceased to act, but before she took an active step by appearing in court in response to it), those costs would have been incurred at a time when the claimant was not a legally assisted person.
Third, the reinstatement of a legal aid certificate for the purposes of enabling new solicitors to act after the discharge of that certificate when previous solicitors ceased to act, did not have the effect retrospectively, that the litigant was deemed to have been a legally assisted person for the purposes of s 17 during the period between the discharge and the reinstatement of the certificates or, more importantly, during any period between the termination of the old firm’s retainer, and the commencement of the new firm’s retainer.
Those conclusions flowed from, first, Burridge and the plain meaning of s 2(11) of LA 1988. Section 2(11) required inquiry as to whether a person was in receipt of advice (etc) under the Act. A litigant acting in person could not be in receipt of legal advice in that sense. The phrase “acting in person” meant taking some active step in the proceedings, rather than merely the converse of not being legally represented.
Second, it would be wrong to treat the state of mind of the litigant acting in person as determinative of the question whether she had at that stage ceased to be a legally assisted person, so as to distinguish between litigants who decided to act in person permanently and litigants like the claimant who acted in person only while seeking to obtain alternative legal representation. It would be wrong because an investigation of the litigant’s motivation would be altogether too subjective and uncertain, and would have, on its face, nothing to do with the objective question stated in s 2(11) of LA 1988, namely, whether the litigant was in receipt, under the Act, of legal advice etc.
Third, the question whether at any particular time a litigant was a legally assisted person was of real importance for the other litigants in the case, for consequences arising under ss 17 and 18. It could not therefore be right that the other litigants, once informed that the previously legally assisted person had ceased to be in receipt of legal advice and representation, was nonetheless kept in suspense until the outcome of any investigation as to his opponent’s motivation, or the outcome of any subsequent application to reinstate the legal aid certificate in question.
His lordship then dealt with the appeal on the facts.
