Summary

A litigant in receipt of legal aid ceased to be an assisted person when he became a litigant in person and not at the time of the discharge of the legal aid certificate..

Facts

One appeal and one application relating to costs awards against legally aided persons heard together. In the first case the appellant ('Mrs Stafford') had been a legally aided person in respect of a trial in Bristol County Court fixed for hearing on 27 October 1997. On 17 October 1997 her solicitors ceased to act, and on 24 October 1997 they came off the record. On 27 October 1997 she applied in person for an adjournment and this was refused, the judge making an order against her for indemnity costs. The trial continued before a different judge who made an order for payment of the sum claimed against her, ordered indemnity costs against her and ordered that she be deprived of any protection arising out of being an assisted person, but without making any investigation of her means. The issues on the appeal were therefore: (i) whether either judge was entitled to make an indemnity costs order; (ii) whether the second judge had any jurisdiction to make an order stripping her of the protection given by s.17 Legal Aid Act 1988 against a costs order being enforced against an assisted person; and (iii) what was the date upon which she ceased to be an assisted person so that she lost the protection of s.17 in any event. In the second case on 4 February 1997 the Court of Appeal dismissed an appeal by the plaintiff ('Mr Khan') and made a costs order in favour of the defendant ('Dr Ali') preserving Mr Khan's protection from enforcement whilst he remained an assisted person but with an order nisi against the Legal Aid Board under s.18 of the 1988 Act which that Board did not contest. The issue in this case therefore was the question of the date when Mr Khan ceased to be an assisted person, but because there was no prospect of recovering costs from Mr Khan either the Legal Aid Board or Dr Ali sought to recover a wasted costs order against Siwan & Co, Mr Khan's former solicitors covering the period between the time they ceased to act and the much later time that they informed the Legal Aid Board that they had ceased to act and took themselves off the record.

Held

1) The application for an adjournment was totally unmeritorious, and the defence in the action was a "try on", so that in each case the relevant judge was entitled to make an order for indemnity costs. (2) Since the judge had made no investigation of Mrs Stafford's means he was not entitled simply to strip her of the protection provided by s.17 of the 1988 Act. (3) If he had investigated her means it would have shown that an order against her in the sum of a few thousand pounds would have been reasonable, and the court was prepared to substitute an order for costs assessed under s.17 at #3,000 if the parties required it. (4) A person ceased to be a legally assisted party for the purposes of ss.17 and 18 of the 1988 Act from the date upon which he started to act in person, because from that time he was no longer receiving the benefit of legal aid, and for Mrs Stafford that date was 17 October 1997. (5) On the same principle that date was 31 January 1997 for Mr Khan, and the Legal Aid Board were not liable for any costs order against him after that date. (6) There were in fact no costs wasted and it was inappropriate to consider further any application for a wasted costs order.

Appeal and application dismissed.