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Richard Andrew Campbell v Robert Campbell (2018)

Summary

A litigant in person, in whose favour a costs order was made, was not entitled to recover the costs of work undertaken on his behalf by a foreign lawyer. A foreign lawyer lacking a qualification in the jurisdiction could not be regarded as a "lawyer" or providing "legal services" for the purposes of CPR r.46.5(3)(b).

Facts

A litigant in person, in whose favour a costs order was made, appealed against a decision that he could not recover the costs of work undertaken by a foreign lawyer.

He had been represented in the instant proceedings for a period of time by a London law firm. He became a litigant in person, and was thereafter assisted in matters relating to the litigation by a firm of Jersey advocates that had been acting for him in a related case in Jersey. Most of the work was undertaken by one partner in the firm who was not entitled to practise as a solicitor in England and Wales during the relevant period. The costs of litigants in person were addressed in CPR r.46.5, and it was his case that r.46.5(3)(b) extended to payments made for the services of a foreign lawyer. The judge concluded that services provided by a lawyer qualified in another jurisdiction did not constitute "legal services" for the purposes of r.46.5(3)(b).

Held

Although r.46.5(3)(b) did not state so expressly, it could be seen from the case law that "legal services" had to be "provided by or under the supervision of a lawyer", United Building & Plumbing Contractors v Kajla [2002] EWCA Civ 628 and Agassi v Robinson (Inspector of Taxes) (Costs) [2005] EWCA Civ 1507 applied. It was also implicit in the provision that the lawyer had to be someone who could be expected to be competent to supply services "relating to the conduct of the proceedings", which would be proceedings in the jurisdiction. A lawyer qualified in England and Wales would be such a person, but a foreign lawyer would not. Accordingly, a foreign lawyer lacking a qualification in the jurisdiction could not be regarded as a "lawyer" or, thus, providing "legal services" for the purposes of r.46.5(3)(b), since what mattered in that context was expertise in the law and procedure governing the relevant proceedings, namely that of England and Wales. That conclusion made sense in public policy terms. The true policy consideration on the interpretation of the Rules was that those who provided advice and assistance in connection with litigation in the jurisdiction ought to be properly qualified, regulated and insured in the jurisdiction (see paras 11-12 of judgment).

Appeal dismissed

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Judgment
31 Jan 2018

Court of Appeal (Civil Division)
Longmore LJ, Newey J

References
[2018] EWCA Civ 80

Members
Andrew Twigger QC
Narinder Jhittay