Saturday, 26 July 2008

Vincent Cable in Parliament

Hansard Debate.
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Solicitors (Conduct)

4 pm

Dr. Vincent Cable (Twickenham) (LD): It is a privilege to introduce one of the last debates before the recess. It relates to an issue that has preoccupied me pretty much since I became an MP 11 years ago. At our weekly surgeries, we all see people with legal problems which those of us who are not legally qualified struggle with. Many involve unhappiness about the treatment provided by solicitors.

To give an idea of the order of magnitude, last year Citizens Advice had 300,000 cases with a legal dimension referred to it, a quarter of which involved the conduct of the solicitors involved. That conduct was not necessarily wrong, but the figures show the magnitude of the problem. I acknowledge that not all the complaints that we hear about solicitors are valid, however strongly expressed. In many cases, people believe that they have been cheated by the legal system, and that may have been so on grounds of common sense or natural justice, but they may have lost on a point of law and find that difficult to accept, particularly as it is so difficult to obtain legal aid funding. We are coming increasingly close to do-it-yourself law with people pursuing their own cases in complex areas and feeling a sense of grievance about the process when they lose. Many people blame their solicitors when the problems lie with the HM Courts Service, judges or elsewhere, but in many cases there is a genuine complaint.

Another qualification that I want to make at the outset is that I recognise that, as with accountants, architects and Members of Parliament, I am sure that the vast majority of solicitors are entirely honest, competent and admirable professionals, but some are not and it is those with which we are concerned. During the Government’s period of office attempts have been made to strengthen the profession’s self-regulating processes, particularly that covering solicitors. The Government have been active in that and I am not criticising their approach, but there are some loose ends that I shall refer to.

Citizens Advice sent me a brief for this debate, which is worth quoting. Its considered judgment—it probably hears about more such cases than anyone else—is:

    “We support recent reforms to legal services regulation, and have long argued that consumers...are not sufficiently protected from poor or negligent services by the traditional systems of...self-regulation within the legal profession. Too often we see cases in which clients have been very poorly advised and serviced by their solicitor, and costs have been vastly disproportionate to the issues involved. The consequences of poor conduct by solicitors can be devastating for their clients. Therefore we welcome this debate.”

I have just been at a meeting in Committee Room 6 with an organisation called Complaints Against Solicitors, action for Independent Adjudication—CASIA—which was established 13 years ago; I seem to remember that the hon. Member for Great Grimsby (Mr. Mitchell) was actively involved with it. It is a network of people who have had terrible experiences, not just with solicitors, but with the legal system. Many of the people I have just met had appalling stories to tell of ruin caused by negligence or, in some cases, worse treatment by their solicitors.

To provide a perspective on the matter, it may be helpful if I review the continuous process of change that has characterised the legal complaints process.

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I am not sure what happened before 1997, but I believe that there was something called the Solicitors Complaints Bureau within the Law Society which dealt with complaints. It evolved into the office for the supervision of solicitors, which most of us remember dealing with and which was notorious for delays, evasion and administrative failures. I believe that the Government shared that assessment and were critical of it.

The Minister’s predecessor, David Lock, talked about self-regulation of the legal profession as a privilege and not a right, and on the back of that the Government initiated various changes with the Law Society, including establishment of the legal complaints commission—the Office of the Legal Service Complaints Commissioner—and, in 2006, the splitting of the various regulatory processes within the legal profession, one branch leading to the Solicitors Regulation Authority and another leading to the legal complaints commission, which is interrelated with an ombudsman, who happens to be the same individual as the legal complaints commissioner. In 2010 and 2011, we shall move into a new environment in which there will be an overarching Legal Services Board split into two subsidiary roles—the SRA and the Office of Legal Complaints, which will have the OLSCC and the ombudsman folded into it. Merely reciting that list of organisations indicates a rapid and continuous process of organisational flux, which may have been necessary, but has been enormously confusing to people pursuing long and complex complaints.

To evaluate where the matter is heading, it is worth quoting Which? The Consumers Association acknowledges that in the past few years, the changes have

    “meant that since 2006 the LCS has much improved, while the SRA has made much of its independence”.

Clearly, there has been action, and there is statistical evidence that the SRA has been striking off or suspending more solicitors. The number rose from 32 to 45 between 2006 and 2007, but the OLSCC fined the Legal Complaints Service for an inadequate plan.

I have two questions for the Minister. Will the OLSCC, which has established itself as a genuinely independent and often outspoken voice for consumers, continue to have oversight of the arrangements until the new set of institutions comes into effect in two years? My second question concerns a point that the consumer bodies are anxious to pursue. What is the Government’s position on the proposal that complaints data should be published? It is obviously important that when someone approaches a new solicitor they have some indication of that solicitor’s past record and whether complaints have been upheld. Consumer groups are anxious that there should be full and transparent publication. I know that the Law Society is going out to consultation, but do the Government have a view, and are they actively promoting it?

Before coming to my two key issues, I must digress a little into a case that has established my interest in the matter. I do not want to go too far into the details of a complex case that goes back over a number of years, but I shall give the background. It relates to one of my constituents, Dr. Oraki, who is Iranian by origin, with whom I first became involved when she was fighting a compensation claim over a post office that was closing in Whitton in my constituency. We eventually secured compensation, largely due to the intervention of the

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National Federation of SubPostmasters and me, but during the course of the battle, she sought legal advice from a firm called Dean and Dean. Its senior partner was Mr. Tehrani, and Mr. Mireskandari was a trainee solicitor. They provided her with legal services on a subsidiary issue relating to the tenancy of the property and the landlord, which was described as a fairly simple matter. Dr. Oraki entered a fixed-fee arrangement for £1,000, but something went wrong in court. I was not there, but the solicitor probably did not secure the result that Dr. Oraki wanted and there was a good deal of frustration.

Some time later, the solicitor presented a bill for more than £19,000, which has become a cause célèbre within the legal complaints process. My constituent alleged two serious failings, one of which was breach of professional care or client care, and was subsequently admitted in court—I cannot comment on whether that was correct, but that was the allegation. The second, more seriously, was that one of the gentlemen involved, Mr. Mireskandari, had charged a full fee as a fully qualified solicitor when he was an assistant trainee. My constituent went to considerable lengths to demonstrate that he was not fully qualified at the time.

On the basis of her allegations, my constituent refused to pay the bill. The matter was referred to the legal complaints process, and she sought action in respect of professional negligence. However, in the course of that prolonged dispute, the solicitor threatened her with bankruptcy and the initiation of bankruptcy proceedings. She was advised—including by me—that bankruptcy is not a good place to be, even if one happens to be in the right. She therefore offered to pay the outstanding bill, but that was refused. She offered a second time with witnesses present and the solicitor refused to accept it again, and insisted on taking her to the bankruptcy court. She was a solvent—indeed highly solvent—bankrupt, but nevertheless she was made bankrupt and has been so now for three years while the legal complaints processes have rattled through the system. She has gone backwards and forwards between the Legal Complaints Service—

Hugh Bayley (in the Chair): Order. I obviously do not know the outcome of the story that the hon. Gentleman is telling, but if it is a matter that is still before the courts, I should remind him that the sub judicerule prevents it being discussed on the Floor of Westminster Hall.

Dr. Cable: I do not think it is before the courts any longer, Mr. Bayley, but I accept your ruling. In any event, I do not wish to proceed with providing more details of the case; I simply want to extract two generic public policy issues from the matter and to do that I felt that I needed to provide the background to the case.

The first public policy issue is whether it is right and proper that solicitors should be able to use bankruptcy as a means of pursuing a financial claim with their clients. I have written on that subject to the Solicitor-General, who has sent me a thorough and helpful reply. I do not fully agree with it, but at least she has set out the Government’s case. Her argument is that solicitors should be able to pursue a bankruptcy case just like anyone else. However, there is an obvious problem in that there is an asymmetry of knowledge. A solicitor clearly has access to much more sophisticated legal information and knows the court procedures and staff, which means it is clearly a highly one-sided encounter.

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The Solicitor-General also said that my constituent could get another lawyer to defend her in the process. The problem with that is that when someone has become bankrupt and their assets are in a trusteeship, no solicitor will take on the case. Indeed, there is a great deal of reluctance to do so—not just by her, but by others. I have come across several other cases of this kind where it has become virtually impossible for people to defend themselves effectively when a solicitor—especially a powerful solicitor—takes bankruptcy proceedings against them.

I wish to ask a fairly open-ended question: is it possible to explore with the Law Society a mechanism whereby solicitors can pursue legitimate financial claims? Of course, like any other business, they must be able to do so—I am not suggesting otherwise—but it should be done in a way that prevents possible conflicts of interest and unfairness. Let me make an analogy. The situation is a bit like a dispute at a private school in which a pupil has not paid their fees because their parents will not pay them. The parents might be right or they might be wrong, but instead of simply resorting to expulsion the head teacher of the school decides to administer corporal punishment to the pupil. There is an element of that situation in this sort of treatment, so I ask the Government to think about that.

Finally, the second very important issue that I wish to raise—the other issues are important to the individuals concerned, but this is an important matter of public policy—is whether the legal authorities have sovereign immunity. In the past few days, it has been announced in the newspapers that the solicitor to whom I referred—Mr. Mireskandari—is issuing a £10 million defamation claim against the head of the Solicitors Regulation Authority. That was announced in the newspapers. Although I am not familiar with the individual case and cannot comment on it, I wish to ask the Minister whether the head of that organisation enjoys legal immunity from that or any other source.

That is a public policy issue for the following reason. If the head of that body does not enjoy legal immunity, how can we be fully confident that he can do his job in the way he is required to? Imagine what would happen if the head of Ofgem could be sued by a gas company that was angry because an inquiry was being pursued. That would be an analogous problem. Are the head of the legal regulatory body and his staff protected by legal immunity?

The same question extends to the legal services ombudsman; does it enjoy legal immunity? I am sure that the Minister understands the problem. If a powerful solicitor feels threatened by an inquiry and they feel that they have the right to issue legal proceedings against the head of the regulatory body, it is difficult to see how the integrity of the system and public confidence in it can be maintained. I am not a lawyer, but I am essentially asking the Minister about a matter of fact: are the organisations that she has quite properly established to protect the public themselves protected from legal claims?

4.15 pm

The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): It is normal to congratulate the Member who has secured the debate, although I am not sure whether the congratulations will be particularly

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enthusiastic at the end of this part of the parliamentary Session. However, I am grateful that the hon. Member for Twickenham (Dr. Cable) has initiated a debate on the conduct of solicitors because it is something that is very dear to my heart, particularly as I recently took the Legal Services Act 2007 through the House. I will come back to the Act in a moment.

It is important to recognise that almost everyone at some point in their life will have to use legal services of one sort of another. It could be a relatively straightforward thing, such as taking an oath, or something more complicated, such as buying a house, getting divorced or dealing with matters after the death of a family member. Often, when an individual—the consumer or customer—has to take legal advice from solicitors, they are at a vulnerable stage in their life. It is, therefore, paramount that solicitors give individuals confidence in the standing of their firm and the services they provide.

It is equally important that if things go wrong—as inevitably they sometimes do— the complaint is taken seriously. Consumers need to know exactly where to take their complaint about poor service or the conduct of their solicitor, both now and in the future. As the hon. Member for Twickenham said, the legal profession is independent and self-regulating. The process for dealing with complaints is provided by and for solicitors—by the legal profession.

The hon. Gentleman gave a brief and succinct outline of the stages through which we have come in dealing with complaints against the legal profession. The fact is that 10 years or so ago, a complaint against the legal profession was almost a waste of time—the profession did not take complaints seriously, and often ignored them and brushed them under the carpet. The profession certainly did not respond sensitively to consumers.

Since then, we have come a long way. It has been an arduous process, and I put on record that I am grateful to the Law Society and to the Solicitors Regulation Authority. They have come to recognise that the type of behaviour that was prevalent in the past is no longer acceptable, and that the consumer must have confidence both in the behaviour of the solicitor initially and in the complaints system if a solicitor falls down during the process. In fact, the Legal Complaints Service handles a fairly large number of complaints. The most recent statistics show that it received 1,159 new complaints about poor service and closed, or dealt with, another 1,200 or so—indeed, it dealt with them within three months of receiving the complaint. It has improved its services in that respect.

The hon. Gentleman talked about the SRA, which is the regulatory arm of the Law Society. It is now split from the policy arm of the Law Society. It was appropriate that the Law Society was not seen to be acting as trade union and regulator, as it had been. That has made a big difference to the way that complaints are handled.

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There is a code of conduct, which sets out the behaviour that solicitors should abide by and what is expected of them in their dealings with consumers. Rule 1 of the code states that solicitors must act in the best interests of the client. It might be of interest to the hon. Gentleman to know that under rule 2, there are provisions relating to client care and information about costs. Those rules are in place to ensure that the solicitor gives the client all necessary information so that they can make proper decisions about if and how the matter should proceed.

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A consumer might decide because of the cost that it would not be appropriate to take the action further. The rules are approved by the Secretary of State and any changes receive a high level of scrutiny. The impact on the consumer is considered before the rules are approved.

The SRA is responsible for taking action against any solicitor who breaches the code of conduct. Once an allegation of misconduct has been investigated, the SRA has the power to take disciplinary action if it considers that a solicitor has been in breach. In the 12 months before April this year, the conduct investigation unit of the SRA concluded investigations into 4,875 cases. That is a staggering number of individuals who felt that they had not been best served by their solicitors. As the hon. Gentleman said, we see people in our surgeries who do not think that their solicitor has served them well. Sometimes that is because it is hard for people to accept that the answer to their question is no, but on other occasions it is because they have not been well served. Of the 4,875 cases, 141 were referred to the solicitors disciplinary tribunal and 63 orders were made to strike solicitors off the register, which is the ultimate sanction.

If consumers are unhappy about how a complaint has been dealt with by the LCS or the SRA, they can refer the matter to the legal services ombudsman. The hon. Gentleman will know that the ombudsman takes her job seriously and keeps a strict eye on the Law Society and the SRA. Her latest annual report displayed concern about poor decision making in individual cases, although she recognised that the time taken to deal with complaints was decreasing. I am pleased to see that improvement, but there are still problems. There are cases in which the conduct of solicitors has been called into question and it often appears to the consumer that no action has been taken. However, it must be remembered that the SRA investigation process can involve a great deal of work, so it may be some time before the complaint is resolved.

I will answer the hon. Gentleman’s two questions and then return briefly to the future system under the Legal Services Act 2007. He mentioned Citizens Advice and Which? and I put on the record my thanks to both organisations for working extraordinarily closely with us when we were drafting the 2007 Act. I took seriously their advice about ensuring that the consumer was at the heart of the new system. As a result, the Act will allow the consumer to feel that their voice will be heard loud and clear.

The hon. Gentleman asked about a particular bankruptcy case. I shall obey your strictures, Mr. Bayley, and not

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refer to that case. I will take on board the hon. Gentleman’s question and speak to the Law Society about whether there is a more appropriate way for solicitors to deal with their clients. However, solicitors, like all businesses, must be able to receive their fees when appropriate. I will ask the Law Society to consider whether there are other ways to deal with that issue. In a bankruptcy court it would be for the court, rather than the solicitors, to decide whether the bankruptcy should go ahead. The court should take all issues into account, including whether the consumer felt that they had received the service they expected. Under the 2007 Act, a new office for legal complaints will be established, which will have a lay chair and a lay majority to ensure that the consumer’s voice is heard.

The hon. Gentleman asked whether the SRA, its chief executive or the ombudsman have immunity. They do not enjoy any statutory legal immunity. They enjoy protection from civil liability and criminal prosecution to the extent that is determined by the usual principles of law.

It is important that the public know that they can trust solicitors, barristers and others in the legal profession, and they must know where to go if things go wrong. There have been justified criticisms of the current complaints system. One need only look at the matter of miners’ compensation to see some of the issues that have arisen. I hope that the framework we have put in place in the 2007 Act and the work that the SRA is doing on listening to consumers to inform its policies will provide the public with the high level of service that they deserve.

The hon. Gentleman asked whether issues raised by the SRA could be published. I will ask the body whether it has considered publicising any of the issues that have arisen in the course of dealing with the complaints of individuals, because it will be for the SRA to take that decision.

I appreciate the opportunity to highlight the changes that we are making through the 2007 Act. I will take on board the issues raised by the hon. Gentleman and ask the Law Society and, if necessary, the SRA to look at them and come back to me. I will advise him as soon as possible of any other changes that may be made to put consumers at the heart of the legal system.

Hugh Bayley (in the Chair): Following the intervention made earlier by the hon. Member for Kettering (Mr. Hollobone), I can tell him that we are now able to debate in this Chamber in a quieter environment. We now come to a near perfect subject for the final Westminster Hall debate before the summer recess: provision for allotments.

Wednesday, 9 April 2008

Malkinson and Trim

Case No: 2001/2629
Neutral Citation No [2002] EWCA Civ 1273
(Costs Judge Rogers)
Royal Courts of Justice
London, WC2A 2LL

Friday 13th September 2002
B e f o r e :


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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Simon Jonathan Brown (instructed by Messrs Ashton Bond Gigg, Solicitors for the Claimant/Appellant)
Mr Alexander Hutton (instructed by Messrs Crusts, Spalding for the Respondent)

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As Approved by the Court

Crown Copyright ©
Lord Justice Chadwick:

1. This is an appeal from an order made on 21 September 2001 by Costs Judge Rogers. It raises a point of some general importance: is a solicitor who has been represented by his own firm in the successful defence of proceedings brought against him personally, entitled (under an order for costs in his favour) to the profit costs of his firm in defending those proceedings?
The underlying facts
2. The appellant is the son of the late Mr Bertram Malkinson and his wife, Mrs Marjorie Malkinson. Mrs Marjorie Malkinson died on 10 April 1985. By her will dated 8 August 1984 she left her home and the residue of her estate to her husband. Probate of her will was granted on 11 October 1985 to the executors named therein, Mr Eric Christie and Mr Sydney Malkinson. Mr Bertram Malkinson died on 24 March 1986. By his will, also dated 8 August 1984, he left the residue of his estate to his three children. Probate of his will was granted on 12 February 1987 to Mr Christie and Mr Sydney Malkinson. At the relevant time Mr Christie was in practice as a solicitor in partnership under the firm name Tinn Thimbleby & Co. As one of the residuary legatees under his father’s will the appellant was beneficially interested both in his father’s estate and in his mother’s estate (which had not been fully administered at the date of his father’s death). He was dissatisfied with the way in which the estates of his parents had been administered.
3. These proceedings were commenced by the appellant in October 1993 by the issue of a writ in the Chancery Division of the High Court. By that date it appears that Mr Christie was insolvent, being subject to an interim order made on 1 June 1992 under section 252 of the Insolvency Act 1986. The claim in the proceedings against his former partners in Tinn Thimbleby & Co – who are named as the second to sixth defendants in the writ - was for reinstatement of monies which, it was said, had been wrongfully paid out of the two estates in respect of solicitors’ charges for administration; and to a firm of accountants for accountancy services.
4. The fifth named defendant, Mr Christopher Trim, who is the only respondent to this appeal, had ceased to be a partner of Tinn Thimbleby on 31 December 1987. In November 1988 he became a partner in the firm of Crusts. In November 1993 Crusts acknowledged service of these proceedings on the respondent’s behalf; and went on the record as his solicitors. On 22 May 2000 – following settlement negotiations in which the respondent had declined to participate but which, it seems, had led to a compromise of the claims against the other defendants – the appellant served notice of discontinuance of the proceedings against him. The effect of a notice of discontinuance, under CPR 38.6(1), was that, unless the court otherwise ordered, the appellant was liable for the costs which the respondent had incurred in the proceedings on or before the date of service. A bill of costs in the total amount of £15,246.95 (including value added tax) was lodged by Crusts for assessment.
5. The partnership deed into which the respondent had entered on 22 November 1988 contained a clause – clause 13 – in these terms:
“Provision of Legal Services for Partner and Connected Person
If any of the parties hereto or any office of the practice shall act as solicitor or solicitors for any partner or for the wife or any child or children or the parents of any partner or his or her personal representatives or trustees then no charge shall be made by the partnership practice for the provision of such services except in respect of out of pocket expenses and of costs recovered from other parties in any proceedings or out of any estate or property the subject of any such proceedings and any costs so recovered shall belong to the practice.”
6. The appellant, through his solicitors, served points of dispute in respect of the bill of costs. They contended, as a preliminary point, that:
“The 5th Defendant and Crusts entered into a contingency fee agreement contrary to Rule 8(1) of the Solicitors’ Practice Rules 1990, and the retainer (if any) of Crusts is contrary to public policy and unenforceable, and the 5th Defendant has not incurred costs recoverable from the Claimant.”
The point was rejected by Costs Officer Worthy, in a ruling on 6 July 2001. The appellant appealed, as he was entitled to do under CPR 47.20. The appeal came before Costs Judge Rogers in September 2001. He dismissed the appeal; but gave permission to appeal against his own order and directed, under CPR 52.14(1), that the appeal, which would otherwise have gone to the High Court, should be transferred to this Court.
The decision of the costs judge
7. The costs judge in a careful written judgment handed down on 20 September 2001, identified three issues for decision: (i) whether clause 13 of the Crusts partnership deed of 22 November 1988 constituted a contingency fee agreement; (ii) whether, if so, that agreement was unenforceable, either by virtue of the Solicitors’ Practice Rules or under the common law; and (iii) whether the respondent was entitled to recover costs in any event under the principle in London Scottish Benefit Society v Chorley Crawford and Chester (1884) 12 QBD 452, (1885) 13 QBD 872 (CA). He held, on the first of those issues, that the effect of clause 13 of the partnership deed was that the respondent incurred no liability to the firm, save in respect of disbursements, unless and until a costs order was made in his favour. He rejected the submission that the agreement was unenforceable under the Solicitors’ Practice Rules, as in force in 1992 (which he held to be the relevant date); but accepted the alternative submission that it was unenforceable at common law. He reached that conclusion on the basis of the decision of this Court in Awwad v Geraghty & Co [2000] 1 All ER 608. His findings on those issues would have led to the conclusion that the respondent’s costs (other than disbursements) were not recoverable in the present case. But he did not reach that conclusion because he accepted that the principle in the London Scottish Benefit Society case had survived the introduction of the Civil Procedure Rules, and was applicable. He held that, under that principle, the respondent should be allowed his firm’s costs, subject to assessment.
The issue on this appeal
8. The only issue on this appeal is whether the costs judge was right to hold that the respondent’s costs were recoverable under the principle in the London Scottish Benefit Society case. There is no cross-appeal challenging his conclusions on the other two issues. But, as I shall explain, that issue turns on two distinct questions: (i) whether, in a case where the solicitor litigant carries on practice in partnership, the principle extends to work done on his behalf by the partnership and (ii) whether the principle has survived the introduction of the Civil Procedure Rules.
The principle to be derived from the London Scottish Benefit Society case
9. The principle for which the London Scottish Benefit Society case has long been treated as authority is that set out in the headnote of the report of that case in the Divisional Court, at (1884) 12 QBD 452:
“Where an action is brought against a solicitor who defends it in person and obtains judgment, he is entitled upon taxation to the same costs as if he had employed a solicitor, except in respect of items which the fact of his acting directly renders unnecessary. ”
The principle was confirmed, on appeal, by this Court - see (1884) 13 QBD 872, 876. It was incorporated, in substantially those terms, into the County Court Rules, 1903-1908, as Order LIII, rule 25 – and, as such, was applied by this Court in H Tolputt & Co Limited v Mole [1911] 1 KB 837. It was treated as “well established” by this Court in Buckland v Watts [1970] 1 QB 27, 35G-H, 37F.
10. In London Scottish Benefit Society v Chorley, Crawford and Chester the defendants Crawford and Chester were solicitors. They were sued, as such, for money had and received to the use of the plaintiff society. They conducted their own defence, were successful and obtained an order that the plaintiff pay their costs. The Divisional Court held that, on taxation, they were entitled to be reimbursed for the time and skill which they had expended in defending the claim. It was in that context that the principle for which the case has become established authority was enunciated. The first question raised by the appellant on this appeal is whether the principle applies where (a) the defendant, although a solicitor, does not expend his own time and skill in defending the claim – because the defence is undertaken by one of his partners or by others within the firm of which he is member - and (b) the claim in the action is not a claim which is, or could be, brought against that firm – that is to say, it is not a claim in respect of anything done by the defendant while a partner or employee of that firm.
11. In order to resolve that question it is necessary to analyse the reasoning – both in the Divisional Court and in this Court - which underlies the decision in the London Scottish Benefit Society case. There are, I think, six elements in that reasoning. First, that a person wrongfully brought into litigation ought to be indemnified against the expense to which he is unjustly put – see the observation of Sir William Brett, Master of the Rolls, (1884) 13 QBD 872, at page 875. Second, the need is for indemnity, not punishment or reward – see the reference in the judgment of Mr Justice Denman, (1884) 12 QBD 452, at page 455, to the general rule, laid down by Baron Bramwell in Harold v Smith (1860) 5 Hurlestone & Norman 381, that costs are allowed only by way of indemnity, in the sense that a party cannot be allowed to recover by way of costs expenditure which he has not incurred. As Baron Bramwell put it in the earlier case, ibid at page 385: “Costs as between party and party are given by the law as an indemnity to the person entitled to them: they are not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them.”. Third, application of those two principles leads to the conclusion that a person can recover the cost of employing a solicitor to assist him in the litigation – see per Sir William Brett, Master of the Rolls, at (1884) 13 QBD 872, at page 875, and per Lord Justice Bowen, ibid at page 877. Fourth, an ordinary litigant – that is to say, a litigant who is not a solicitor – cannot recover, as costs, compensation for the expenditure of his own time and trouble. That is because “it is impossible to determine how much of the cost is incurred through his own over anxiety” – per Sir William Brett, Master of the Rolls, at (1884) 13 QBD 872, at page 875; or, as it was put by Lord Justice Bowen, ibid at page 877, because “. . . private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity and the nervousness of the individual.”. Fifth, those considerations are of no weight where the litigant is himself a solicitor. “Professional skill and labour are recognised and can be measured by the law.” – per Lord Justice Bowen, ibid at page 877. And, sixth, a rule of practice which enables a litigant who is a solicitor to recover, as costs, compensation for his own time and trouble is beneficial, because it is likely to lead to a reduction in the amount which the unsuccessful opponent will pay under an order for costs: “if the rule were otherwise a solicitor who is party to an action would always employ another solicitor, and whenever he is successful he would recover full costs; whereas under the rule of practice laid down by us, a solicitor who sues or defends in person will be entitled, if he is successful, to full costs, subject to certain deductions [costs of taking instructions from, and attendances upon, himself], of which his unsuccessful opponent will get the benefit.” – per Lord Justice Fry, ibid at pages 877-8, and see, also, the observations of Sir William Brett, Master of the Rolls, ibid at page 875, and, in the Divisional Court, Mr Justice Manisty and Mr Justice Watkin Williams at (1884) 12 QBD 452, at pages 457 and 460.
12. The scope of principle is not in doubt in the simple case where the solicitor “acts for himself”. The point is made by Mr Justice Denman, at (1884) 12 QBD 452, 455, that:
“The solicitor’s time is valuable: he applied his skill to the suit or action in which he is obliged to spend his time and exercise his skill in consequence of the wrongful act of his opponent; and therefore it is not an unreasonable view that the word “costs”, in the sense of an “indemnity”, should be held fairly to include a reasonable professional remuneration for that work which, if he did not do it himself, would have had to be done by another solicitor and paid for by his unsuccessful opponent.”
The same point was put in much the same terms by Mr Justice Manisty, ibid at page 457:
“Time is money to a solicitor; and why should he not be as much entitled to his proper costs, if he affords the time and skill which he brings to bear upon the business where he is a party to the action as he is where he is not a party.”
13. Nor is there any doubt that the principle extends to costs attributable to work done for the solicitor by his clerk. Indeed, it may be thought that that case is a fortiori within the indemnity principle. It was accepted by this Court in the London Scottish Benefit Society case that:
“If a solicitor does by his clerk that which might be done by another solicitor, it is a loss of money, and not simply a loss of time, because it is work done by a person who is paid for doing it.”
per Sir William Brett, Master of the Rolls, at (1884) 13 QBD 872, 875; and, to the same effect, the observation of Lord Justice Bowen, ibid at page 877, that:
“. . . it would be absurd to permit a solicitor to charge for the same work when it is done by another solicitor, and not to permit him to charge for it when it is done by his own clerk.”
Does the principle extend to the firm’s costs?
14. If a solicitor can charge for his own time, and for the time of those he employs (who may include an assistant solicitor), should the position be different if some or all of the work is carried out by one or more of his partners, or by employees of the firm. For my part, I can see no reason why it should be. The time of one partner is of value to another partner, because each partner contributes to the profits of the firm. The time of employees of the firm has to be paid for out of the profits in which each partner is interested. To adopt and adapt the observation of Lord Justice Bowen which I have just set out, I would think it absurd to permit a solicitor to charge for work in the litigation when done (a) by another solicitor (or a solicitor in another firm), or (b) by his clerk (or an employed solicitor in his own sole practice) or (c) by himself; but not to permit him to charge for the same work when done (d) by employees of the firm of which he is a partner or (e) by one or more of his partners. The reasoning which led this Court to the conclusion which it reached in the London Scottish Benefit Society case must lead to the same conclusion in a case where the solicitor litigant carries on his practice as a solicitor in partnership. The successful litigant is entitled to an indemnity; there is no difficulty in measuring the cost of legal professional time and skill; and there is likely to be some saving of costs if the work is done within his own firm rather than if he is encouraged, in practice, to instruct another firm.
15. Support for the view that the reasoning which led this Court to the conclusion which it reached in the London Scottish Benefit Society case must lead to the same conclusion in a case where the work is done by the partner of the solicitor litigant can be found in the decision of Mr Justice Stirling, some three years later, in Bidder v Bridges (1887) WN 208. It appears from the short report in the Weekly Notes that the dispute between the plaintiff and the defendant related to their respective titles to land; it was not a dispute which involved the defendant in a professional capacity as a solicitor. Nevertheless, the defence was conducted on his behalf by the firm of which he was a partner: “the action was entirely managed by one of his partners with the assistance of managing clerks.” The defendant succeeded in his defence to the action and was awarded his costs. The plaintiff took objection to the costs charged in relation to the perusal of the defendant’s title deeds by his partner and members of his firm. Mr Justice Stirling upheld the master’s decision to overrule the objection. He said this, ibid at page 209:
“The rule was laid down in London Scottish Benefit Society v Chorley (13 QBD 872-875), and the principle upon which the Court of Appeal went in that case was, that when a solicitor appeared in person, he was not to charge for things which did not exist – he could not attend upon himself. But the Court of Appeal recognised to the full extent, that a solicitor might employ the services of other people – his clerk, and be paid, not for his loss of time, but for the loss of money he would have earned. Was a solicitor’s partner in a different position? The partner attended upon various parties at various places, and certain things had been done by him. All this fell within the principle laid down in that case, and these costs ought to be allowed.”
Mr Justice Simon Brown expressed a similar view (albeit obiter) in R v Stafford Stone and Eccleshall Magistrate’s Court, ex parte Robinson [1988] 1 All ER 430, at page 432h-j:
“>From one line of cases it is perfectly plain that over a great many years a solicitor who successfully defends himself in civil litigation on taxation may properly recover his own profit costs, and that is the case whether or not the work is done by partners or clerks within the firm or done by the solicitor himself. That is established by London Scottish Benefit Society v Chorley (1884) 13 QBD 872, . . .”
Has the principle survived the Civil Procedure Rules
16. I turn, therefore, to the second question raised by the appellant on this appeal: whether the principle in the London Scottish Benefit Society case has survived the introduction of the Civil Procedure Rules. In order to see that question in context, it is necessary to have in mind that the harshness of the common law rule that an ordinary litigant in person could not recover, as costs, compensation for the expenditure of his own time and trouble – recognised in the London Benefit Society case and affirmed in Buckland v Watts [1970] 1 QB 27, 35H, 38B – was alleviated by rules of court made under the Litigants in Person (Costs and Expenses) Act 1975. Order 62 rule 18 of the Rules of the Supreme Court 1965, as it was immediately before the introduction of the Civil Procedure Rules, provided (so far as material) that:
“(1) Subject to the provisions of this rule, on any taxation of the costs of a litigant in person there may be allowed such costs as would have been allowed if the work and the disbursements to which the costs relate had been done or made by a solicitor on the litigant’s behalf . . .
(2) The amount allowed in respect of any item shall be such sum as the taxing officer thinks fit but not exceeding, except in the case of a disbursement, two thirds of the sum which in the opinion of the taxing officer would have been allowed in respect of that item if the litigant had been represented by a solicitor.
(3) Where it appears to the taxing office that the litigant has not suffered any pecuniary loss in doing any item of work to which the costs relate, he shall be allowed in respect of the time reasonably spent by him on that item not more than £9.25 per hour.
. . .
(6) For the purposes of this rule a litigant in person does not include a litigant who is a practicing solicitor.”
17. Sub-rule (6) excluded solicitor litigants from the ambit of Order 62 rule 18. They did not benefit from the power to allow costs conferred by sub-rule (1); but, conversely, the costs which could be allowed to them were not subject to the restrictions imposed by sub-rules (2) and (3). It is, I think, clear that the rule making body intended that the position of a litigant who was a solicitor (or, more accurately, a practising solicitor) should remain unaffected by the rule; that is to say, it should continue to be governed by the principle, or rule of practice, established in the London Scottish Benefit Society case. That that was the view of the editors of the Supreme Court Practice appears from Note 62/B/139 in the 1999 edition:
“Where a practising solicitor sues or defends in person he is entitled on taxation of his costs to the same costs as if he had employed a solicitor, except as to such charges as are rendered unnecessary by his acting in person (London Scottish Benefit Society v Chorley (1884) 13 QBD 872) and the same principle applies where a solicitor acts by the firm of which he is a partner (Bidder v Bridges [1875] WN 208).”
18. The Civil Procedure Rules 1998 took effect from 26 April 1999, subject to transitional provisions in respect of proceedings issued before that date. Paragraph 18 of the Practice Direction – Transitional Arrangements which supplements CPR Part 51 requires that any assessment of costs that takes place after 26 April 1999 will be in accordance with CPR Parts 43 to 48; subject to the general presumption that no costs for work undertaken before 26 April 1999 will be disallowed if those costs would have been allowed in a costs taxation before that date. Costs allowed to litigants in person are now governed by CPR 48.6. Sub–rule (3)(a) preserves the general principle – formerly in Order 62, rule 18(1) - that costs allowed to a litigant in person shall be such costs as would be allowed if the work had been done by a solicitor or legal representative. Sub-rule (2) of CPR 48.6 preserves “the two-thirds restriction” formerly contained in RSC Order 62, rule 18(2). Sub-rule (4) – in conjunction with section 52.4 of the Practice Direction about Costs which supplements Parts 43 to 48 - preserves the restriction on the hourly rate which can be charged by a litigant in person who fails to prove financial loss. CPR 48.6(6) is in these terms, so far as material:
“For the purposes of this rule a litigant in person includes –
(b) a barrister, solicitor, solicitor’s employee or other authorised litigator (as defined in the Courts and Legal Services Act 1990) who is acting for himself.”
19. At first sight, therefore, the effect of RSC Order 62 rule 18(6) – which excluded a litigant in person who was a practicing solicitor from the ambit of that rule – has been reversed. Solicitors are now to be treated in the same way as other litigants in person. In particular, the costs to be allowed to a solicitor litigant in person are to be subject to the two thirds restriction. Attention is drawn to the change by a comment in Note 48.6.1 to Civil Procedure (Spring 2002): “The previous exemption for a solicitor acting on his own behalf has been removed . . .”. But it is accepted that CPR 48.6(6)(b) must be read subject to section 52.5 of the Practice Direction about Costs (set out at 48PD.3 on page 1002 of Civil Procedure). The paragraph is in these terms:
“Attention is drawn to rule 48.6(6)(b). A solicitor who, instead of acting for himself, is represented in the proceedings by his firm or by himself in his firm name, is not, for the purposes of the Civil Procedure Rules, a litigant in person.”
20. That direction can, I think, apply only to a practising solicitor; in that it is difficult to see how a solicitor who is not in practice could represent himself in his firm name, or could be represented in proceedings by his firm. The effect of the direction, therefore, is that the position of a practising solicitor who chooses to represent himself in his firm name, or (where in partnership) to be represented by his firm, remains unaltered by the provisions of CPR 48.6. His costs are allowed (or not, as the case may be) by virtue of, and in accordance with, the principle established in the London Scottish Benefit Society case.
21. This, of course, is a case in which the respondent, a practising solicitor, was represented by his firm. It would follow, if CPR 48.6(6)(b) is to be read subject to section 52.5 of the Practice Direction, that the costs judge was right to decide that the principle in the London Scottish Benefit Society case was applicable. But it is submitted on behalf of the appellant that, once it is accepted that the respondent is not a litigant in person for the purposes of the Civil Procedure Rules, that principle becomes irrelevant. As it is put, at paragraph 4 of the revised skeleton argument prepared for this appeal:
“Once it is accepted that the [respondent] was not a litigant in person then the authority in [the London Scottish Benefit Society case] has no application. A successful party, who is represented by a firm of solicitors, can only recover costs to the extent that he has incurred or is otherwise liable for the costs. A partner to a solicitor’s firm enjoys no special status and is not an exception to this rule.”
22. That submission, as it seems to me, is founded on a misunderstanding of the reasoning in the London Scottish Benefit Society case. As I have sought to point out earlier in this judgment the basis of the principle that a solicitor who acts for himself in litigation is entitled to compensation, by way of costs, for his time and trouble is a recognition that he (in common with any other litigant) ought to be indemnified against the expense to which (on the hypothesis that he has been successful in the litigation) he has been unjustly put. The special position of a solicitor is that he does not need to employ others to provide professional skill and knowledge in the conduct of litigation. He can provide that skill and knowledge himself. Further, there is no difficulty in measuring what it costs him to do so; and there is a potential saving in costs if he is not discouraged from doing so. One effect of CPR 48.6(6)(b), read in conjunction with section 52.5 of the Practice Direction, is that there is now more clearly recognised a distinction between the solicitor litigant who provides, in connection with his own litigation, professional skill and knowledge in the course of his practice as a solicitor - that is to say, who “is represented by himself in his firm name” – and the solicitor litigant who provides skill and knowledge in what might be described as “his own time” – that is to say, outside the course of his practice as a solicitor and (typically) outside the office. The latter is treated as a litigant in person for the purposes of CPR 48.6; and so is subject to the restrictions imposed by that rule, including the two-thirds restriction imposed by sub-rule (2). The former is not. Nor is there any reason, consistent with the need to provide an indemnity, why he should be. Further, there is no reason, consistent with the need to provide an indemnity, why he should not recover the cost of providing professional skill and knowledge through employees of his practice.
23. The position where professional skill and knowledge in connection with litigation to which one partner alone is party is provided by other partners or employees in the firm is, on analysis, indistinguishable in principle from the position where a sole practitioner represents himself in his firm name. At the risk of stating the obvious, a partnership has no legal persona distinct from the aggregate of those who are partners – see section 1(1) of the Partnership Act 1890: “Partnership is the relation which subsists between persons carrying on a business in common with a view to profit.”. It is important to keep in mind – and the failure to do so is a flaw which underlies much of the appellant’s argument – that, although a partner can contract with his other partners, he cannot contract with the partnership of which he is a member. At paragraph 3-04 of Lindley & Banks on Partnership (18 edition, 2002), in a passage attributed to the author of the first edition, the point is put in these words:
“In point of law, a partner may be the debtor or the creditor of his co-partners, but he cannot be either debtor or creditor of a firm of which he is himself a member.”
If further authority be needed, it can be found in the speeches of Lord Radcliffe and Lord Denning in Rye v Rye [1962] AC 496, 512, 513. It was to overcome the problem that a man could not covenant with himself and one or more other persons that Parliament enacted section 82(1) of the Law of Property Act 1925.
24. It follows that an argument based on the proposition that a partner can incur liability to the firm of which he is a member – say, in respect of legal services provided by the firm – is misconceived. A partner can be required to account for the value of legal services provided by the firm by an adjustment in the partnership accounts, but that is not to say that he incurs a liability to the partnership – see Green v Hertzog [1954] 1 WLR 1309, 1312. A partner who is represented in legal proceedings by his firm incurs no liability to the firm; but he suffers loss for which under the indemnity principle he ought to be compensated, because the firm of which he is a member expends time and resources which would otherwise be devoted to other clients. The only sensible way in which effect can be given to the indemnity principle is by allowing those costs. And, as I have sought to explain, that is the solution which, for over one hundred years, the courts have adopted as a rule of practice.
25. It follows that I would dismiss this appeal.
26. I should emphasise, for the avoidance of doubt, that we have not been asked to consider the first two issues decided by the costs judge; and, for my part, I have not done so. But it will be apparent from my judgment that I doubt whether clause 13 of the November 1988 partnership deed, of itself, can be properly be regarded as a contingent fee agreement. It does not, in terms, commit the partnership or any of the partners to provide any litigation or other legal services to anyone. It merely provides for the consequences, as between the partners, in the event that such services are provided. Nothing in this judgment is to be taken as a decision on what the position would be if litigation services were provided by the partnership to the wife, child or parents of a partner, or to his, her or their personal representatives or trustees, without a formal retainer. Nor, of course, does this judgment address the position where litigation services are provided to a solicitor by a firm of which he is an employee and not a partner.
Mr Justice Wall:
27. I agree.
Lord Justice Potter:
28. I agree with the judgment of Lord Justice Chadwick as expressed in paragraphs 1-25 above, to which I have nothing to add. I share his doubt expressed in paragraph 26 that clause 13 of the partnership deed amounts to a contingency fee agreement.

1. Appeal Dismissed
2. The appeal against the order of Costs Judge Rogers dated 21st September 2001 is dismissed.
3. The Appellant shall pay the Respondent’s costs of and caused by the appeal, to be subject of a detailed assessment on the standard basis if not agreed, such assessment taking place at the conclusion of the detailed assessment of the Respondent’s costs of the Main action

(Order does not form part of the approved jdugment


Neutral Citation Number: [2002] EWCA Civ 250
Royal Courts of Justice
London WC2

Friday, 8th February 2002
B e f o r e :




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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
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The Appellant appeared in person
The Respondent did not attend and was unrepresented
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(As approved by the Court)
Crown Copyright
Friday, 8th February 2002
1. LORD JUSTICE SCHIEMANN: Before the court is an appeal brought with the leave of Dyson LJ from a decision of Collins J in relation to costs payable to a litigant in person, Mr Wulfsohn. Collins J had found in favour of Mr Wulfsohn in a judicial review application which was brought by him against the Legal Services Commission who, in substance, refused to give him aid in relation to litigation concerning possession of his house, which was the underlying dispute. Mr Wulfsohn had won his main battle but the only amount of costs that he obtained was £120. That came about in this way. After Collins J had said that Mr Wulfsohn's application for judicial review succeeded, Collins J continued:
“Now, Mr Wulfsohn, you are entitled to any costs you have incurred. You are not entitled to the costs of any research you may have done, but merely to, for example, travel expenses...”
2. Collins J was then referred by Mr Wulfsohn to the Civil Procedure Rules. Mr Wulfsohn said:
“[They say] that I should be allowed two thirds of the amount which would have been allowed if I had a representative.”
3. To which Collins J said:
“Is that what they say now? I do not think so. MR WULFSOHN: Yes, Rule 48.6 of the Civil Procedure Rules.
MR JUSTICE COLLINS: Well,'not entitled to more than two thirds'. It does not say that you are entitled to two thirds.”
4. At that point the judge must have been referring to Rule 48.6(2), which reads:
“The costs allowed under this rule must not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.”
5. There was no reference made in the discussion to paragraph (4) of those rules, which says:
“Subject to paragraph (2), the amount of costs to be allowed to the litigant in person for any item of work to which the costs relate shall, if he fails to prove financial loss, be an amount in respect of the time spent reasonably doing the work at the rate specified in the costs practice direction.”
6. The matter was dealt with very swiftly by Collins J on what was no doubt a busy day. He initially said:
“I cannot make a summary assessment. You have to set it out in detail, if you say you are entitled to it.”
7. There was then some discussion about photocopying, and Collins J said:
“... a litigant in person is not normally entitled to costs of time spent on research, and essentially you cannot claim for any time you spent doing anything.”
8. There was then a discussion about the photocopying and at the end of the day Collins J awarded £120, largely as a result of calculations in relation to photocopying and a train journey, and he said:
“Does that sounds reasonable?”
9. Miss White, who appeared for the Commission said:
“My Lord, yes.
MR JUSTICE COLLINS: In that case, to avoid further costs and problems I will order that you are paid your costs in the sum of £120.”
10. Mr Wulfsohn tried to take the matter further but he got fairly short shrift from Collins J and nothing further appeared.
11. What led Dyson LJ to give leave to this court was his fear that Collins J had not taken into account what should have been the right approach to a litigant in person. If one reads together 48.6(2) and (4) one sees that, in principle, a litigant in person is entitled to compensation for his time, and the rate is fixed by Statutory Instrument and at all relevant times was £9.25 per hour. But there is a cap which is that however long a litigant spends in person doing things he cannot recover more than, broadly speaking, two-thirds of what his legal representatives would have done if he had had a lawyer.
12. In the present case it is to my mind obvious from the nature of the case that a good deal of time has been spent by Mr Wulfsohn on the exercise, and he is, I would hold clearly entitled to considerably more than the £120 which the judge gave him. I was originally minded, therefore, to send the matter to a costs judge to work out. However, that would have increased the costs of matters very substantially.
13. We have not been helped by the presence of anybody from the Legal Services Commission. Their position has been communicated to the court in a letter of 8th November 2001 which they wrote after having received the order by Dyson LJ granting permission to appeal. In that letter they say that the Commission received Mr Wulfsohn's notice of appeal and in an attempt to save costs they wrote to Mr Wulfsohn asking him to provide them with a cost schedule outlining the costs that he was claiming at litigant-in-person rates. It is likely that if he were to produce such a schedule the Commission would agree to pay those costs so as to avoid the costs of this appeal:
“To date, Mr Wulfsohn has not responded to our request. In the circumstances the Commission is not proposing to be represented at this appeal and accepts that it will be liable to pay such sum as the court, if it allows this appeal, orders to be paid at litigant-in-person rates to Mr Wulfsohn.”
14. That, I suspect, explains their absence in front of the court today. It seem to us that, given that that was their broad approach and given that Mr Wulfsohn had told us that he had served them with a rough costs schedule on Monday of this week and with a slightly less rough costs schedule on Wednesday, in each of which he set out (as he had done in front of Dyson LJ) that he had been engaged for about 1200 hours plus on research, and given that they have not turned up and that they are trying to save costs, it would be sensible for us to take evidence from Mr Wulfsohn as to the costs that he had incurred; and so we did.
15. It appears that the history of this matter is a relatively complex one. The Commission having taken a decision that Mr Wulfsohn did not qualify for legal aid he applied for permission to judicially review that decision. That was turned down by Sullivan J on paper. He then applied in person in front of Harrison J and it was turned down again. He then settled a notice of appeal and came before Brooke LJ where he turned up in person again and this time the appeal was allowed and leave was granted to move for judicial review. The matter went back to the administrative court.
16. There was a preliminary hearing in front of Turner J in relation to a dispute over discovery. In the course of that hearing we are told that the Legal Services Commission produced a bill for the purposes of an immediate assessment of costs of £1200 in relation to that application. However, Turner J said that costs were to abide by the event. He did not himself assess them one way or the other, but he ordered the costs were to be in the case.
17. The matter then came as a substantive hearing before Collins J and this time counsel appeared on the other side. Collins J gave a careful judgment which ran to 55 paragraphs. In the course of it he examined a considerable number of documents and the very complicated regulations which govern the affairs of the Commission, and he decided at the end, as I have indicated, that Mr Wulfsohn had won. But because the costs order had been so unsatisfactory from Mr Wulfsohn's point of view, he then had a hearing in front of Dyson LJ and finally a hearing in front of us as well.
18. What are we to do? We are bidden by the Civil Procedure Rules to exercise our powers in such a way that the case is dealt with in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party so as to ensure that it is dealt with expeditiously and fairly, and allotting to it an appropriate share of the court's resources whilst taking into account the need to allot resources to other cases. It is those considerations which have led us to an endeavour to reach a just solution in this case with which both parties should be able to live.
19. There is one other document which was produced to us today which is from Waller & Company Solicitors which is dated today, and says:
“On the limited information that we have been provided by yourself [that is with Dr Wulfsohn], and the Citizens' Advice Bureau in the Royal Courts of Justice and having seen at a very preliminary stage the documentation with regards the above matter we would estimate that the legal cost would be in the region of £15,000 to 20,000 plus VAT.”
20. We have taken that into account, though it is, of course, a very rough-and-ready assessment. Doing the best we can we think an appropriate approach is as follows. We accept from Mr Wulfsohn that he has spent a very considerable amount of time on this.
21. There have been a considerable number of hearings. The matter is of importance and complexity, as is shown by the fact that the Legal Services Commission, which must know its own regulations backwards, one would have thought, thought that a bill for £1,200 was appropriate merely for a hearing in relation to an order for disclosure. The hearing in front of Collins J was clearly a longer one. The applicant had to get all the documents in order (which he did) and produced a long bundle for them. He must have done a lot of research, and he has told us on evidence (which I have no reason to disbelieve) that he spent well in excess of 1200 hours altogether on this exercise so far. It seems to me that the right course in these circumstances is to start with the cap, if you like, as to what this exercise would have cost if it had gone to lawyers in the first place. Doing the best I can on the information in front of us, and being extremely rough-and-ready about it, I would put that figure at £15,000, which means that there would be a cap in relation to Dr Wulfsohn of £10,000. On top of that he does claim one or two things which are not caught by the cap in his schedule. I regard Dr Wulfsohn as having spent an amount of hours on this exercise which, at a rate of £9.25 per hour, would take him above the cap. I regard him as being entitled in principle to the figure of £10,000, to which I would add the charges for photocopying, postage and travel which, between them, come to £460.
22. I would allow the appeal, and I would award him costs of £10,460 in total.
23. I ought to say that there is a hint in the correspondence that it was arguable that Dr Wulfsohn had agreed to the figure of £120 settled on by the judge but, in my judgment, that is not a fair reading of what happened at the end of the day in front of Collins J.
24. LORD JUSTICE RIX: I agree.
(Appeal allowed; Applicant awarded £10,460).

Saturday, 29 March 2008

Sample of Letter - Subject Access Request Under the Data Protection Act 1998

This is an applicable request to solicitors, barristers, the courts and any other authority that processes data. You may wish to refer to the Information Commissioner's website for further information. Also the Data Protection Act 1998.

Sample Letter

Your full Address
The Date

Authorities Address

Dear Sir or Madam

[Your full name and address together with any other details to assist in identifying you and the information you require]

Please send me the information which I am entitled to under section 7(1) of the Data Protection Act 1998 [in relation to [give details if it is specific information you require].[Please would you also advise me of the logic involved in any automated decisions taken by you about me pursuant to section 7(1) (d) of the Data ProtectionAct 1998.]

If you need further information from me, or a fee, please let me know as soon as possible. If you do not normally handle these requests for your organization, please pass this letter to your Data Protection Officer or another appropriate officer.

Yours faithfully


Office of Judicial Complaints Releases First Annual Report

The body responsible for investigating complaints about the conduct of the judiciary in England and Wales has published its first annual report.

The Office for Judicial Complaints (OJC) was set up in April 2006, to consider and investigate complaints against judicial office holders. They report to the Lord Chancellor and Lord Chief Justice jointly, under the arrangement established by the Constitutional Reform Act 2005.

Over the period April 2006-March 2007, the OJC received 1674 separate complaints against judicial office holders. Just over half (51%) were related to judicial decisions, which are outside the scope of the OJC – its brief is to consider complaints against judicial conduct. Disciplinary action was taken in 32 cases, following a thorough investigation.

Read the rest

Full Report - Download here.

The Psychiatry of Unusually Persistent Litigants


Dr F B McManus MB BS FRCPsych RAF, Consultant Psychiatrist,
Birmingham, England

This paper was presented at the International Bar Association Conference and quoted by the Lord Chief Justice . This subsequently damaged the view of litigants throughout the courts. He was questioned about Arpad Toth about the research. The Royal College of Psychiatrists wrote on Dr McManus's behalf and stated " He mentioned that it is not an area of ongoing research interest by him, and that he has not researched obsessive litigants himself. He suggests that the key words listed in the paper may prove useful in conducting a literature search should you wish to investigate further"

Scope of Paper

In this paper I beg in by looking at some early history relating to unusually persistent litigants before focusing upon the specific mental health aspects relating to this group of individuals. Some comments on aspects of management are included.


A variety of descriptive terms have been used to describe a group of individuals who are unusually persistent in their litigation. Such terms include querulant litigants, paranoid litigants, litigious paranoia, morbid querulousness and unusually persistent complainants. This group of individuals attracted the attention of some famous names in the early history of psychiatry. Krafft-Ebing wrote in 1886 “Their constantly more voluminous recriminations, requests and denunciations are filled with invectives and insults to officials which attract the attention of the law……they use up their property, insult the courts and disturb public order”. In 1905, Kraepelin described the syndrome of persistent litigation and commented on the style of correspondence of such people. He felt that they wrote their letters like legal documents and often referred to themselves as the plaintiff or defendant. Their written pages were completely covered with writing which extended even to the margins and they frequently underlined words and phrases. Their case was repeated numerous times in different ways.

The problems of such individuals for the legal profession was highlighted in the Vexatious Action Act of 1896 with the first vexatious litigant being found guilty under the Act in 1897. This individual had started 48 legal actions in the preceding 5 yrs and had attempted to sue, amongst others, the Prince of Wales and the Lord Chancellor. It is still a relatively uncommon finding with approximately 6 individuals per year being named as vexatious litigants in the English courts. Historically, such individuals were felt to inhabit the borderland between “sane but obsessed” and “frankly deluded and psychotic”. However, after early writings on the subject, the literature greatly diminished and some modern textbooks of psychiatry make no mention of the topic at all. However, interest may now be reviving in this topic for reasons to be examined later.

A more modern author (Rowlands in 1988) described “a condition in which there is an overvalued idea of having being wronged, that dominates the mental life, and results in behaviour directed to the attainment of justice, and which causes significant problems in the individual’s social and personal life. It usually, but not always, involves petitioning in the courts or other agencies of administration”. He also described in a neat and elegant way “a small group of people who persist in litigation over real or imagined grievances, regardless of cost or consequences”.

I have already mentioned that the psychiatric literature on this topic is relatively sparse. I suspect that this is because it is unusual for such people to be seen by psychiatrists except in very small numbers. Such individuals are highly unlikely to regard themselves as having a psychiatric problem and even if this is suggested to them by others they are not likely to voluntarily seek psychiatric consultation. Even should they go along to seek advice they would probably resist any suggestion that they might require help. Another factor in the relative paucity of literature on the subject was the rise of the anti-psychiatry movement in the 1960’s and 1970’s, largely as a result of the influence of a psychiatrist Thomas Szasz. Szasz became famous for stating his view that psychiatric disorders did not exist. He saw psychiatric diagnoses as a labelling of individuals in a way that meant that psychiatry was serving the interests of societal control rather than any advancement of mental science. Following on in time from this anti-psychiatry movement, there was the development of Equal Opportunities Legislation, the Human Rights Act, the Freedom of Information Act and an increased accountability of public institutions and private companies to the general public. The social climate, particularly in America and Northwest Europe has been described as a “rights culture” or a “culture of complaint” where customers, clients or patients are encouraged by the system and by legislation to pursue any complaint they might have. As a defence against such increased freedom to pursue complaints, it is not surprising that many organisations, wittingly or unwittingly, put many bureaucratic barriers in the way of individuals seeking redress which only served to add fuel to the litigious flames. Before looking at the psychiatry behind morbid querulousness I think it should be acknowledged that there is a whole range of behaviours from that of individuals making a reasonable complaint or initiating litigation right through the spectrum to those individuals who virtually anyone would regard as either being significantly mentally disturbed or else morbidly obsessed with their complaint or litigation. In other words, I do not believe we are looking at an homogenous group of people who can be subsumed under a single label of the “morbidly querulous” – the situation is much more complex than this.

Classification of Associated Mental Health Problems

A variety of psychiatric conditions might explain at least some of the behaviour of the morbidly
querulous. Table 1 lists those conditions in the tenth version of the World Health Organisation’s
International Classification of Diseases (ICD 10) that might underpin morbidly querulant behaviour.

Table 1 Relevant Psychiatric Conditions from ICD 10
Schizophrenia and Delusional Disorders
•Paranoid Schizophrenia
•Persistent Delusional Disorder
•Paranoia Querulans
Neurotic Disorders
•Somatoform Disorders
•Hypochondriacal Disorder
Personality Disorders

It can be seen from the conditions listed in Table 1 that the words “paranoid” or “paranoia” feature in many of them and this requires further examination. However, in order to understand the relevance of the psychiatric diagnoses we first need to look a little more closely at the underlying psychopathology.
Underlying Psychopathology

The most serious mental disorders are called psychoses and these are conditions characterised by delusions, hallucinations and other forms of disordered thinking. A delusion is “a belief, firmly held on inadequate grounds, not affected by rational argument or evidence to the contrary and out of keeping with the individual’s educational, cultural or religious background”. An hallucination is a false perception e.g. hearing voices talking to you which can have no basis in reality. An overvalued idea is “an isolated, preoccupying belief, which comes to dominate a person’s life and actions, often indefinitely. The belief is usually more understandable to others and is less rigidly held to than a delusion and the person may be able to express doubt about its truth”.The boundary between a delusion and an overvalued idea is often unclear but McKenna in 1984 stated that he felt that the querulous paranoid state remains the standard clinical example of an overvalued idea. The word “paranoid” was originally used synonymously with “delusional” though in more recent times it is a description applied to a person who is suspicious, mistrustful and who feels persecuted by others. It is interesting to note that psychoanalytic theory sees paranoid individuals as being,fundamentally, people with low self-esteem who feel weak and powerless in dealing with others but who project their own self self-loathing on to others around them, thus coming to feel that they are disliked and badly treated by other people. The psychodynamic defence of “reaction formation” can lead to individuals with marked feelings of inferiority to develop an external mask of arrogance and self assurance, something often seen in paranoid people.

Psychiatric Syndromes of Relevance.

Of the various conditions listed in Table 1, it is the group of paranoid-related conditions that most authors feel to be the key to morbid querulousness and we will focus on this more carefully now. Munro in 1982 proposed a paranoid spectrum of disorders using a dimensional view of the conditions rather than a categorical one.

The paranoid spectrum is found below at Table 2.

Paranoid Ideation Paranoid Personality
Persistent Delusional
• Paranoia
• Paranoia

It should be noted that Munro did not include Paranoid Ideation in his spectrum but I believe that there is merit in including it for our purposes. As one reads the spectrum from left to right there is an increasing level of severity of disorder and an increasing disintegration of personality and rationality. I will say a little more shortly about paranoid ideation in the general population and so we can first look at Paranoid Personality Disorder.

Table 3 below details the features of Paranoid Personality Disorder

• Excessive sensitivity to setbacks and rebuffs.
• Tendency to bear grudges persistently; a refusal to forgive insults or slights.
• Suspiciousness; tendency to view neutral or friendly actions of others as hostile
• Combative sense of personal rights.
• Recurrent suspicions regarding sexual fidelity of partner.
• Tendency to experience excessive self-importance.
• Pre-occupation with “conspiratorial” explanations of personal and world events.

It is not difficult to see how such a personality could become morbidly querulant. Many observers note that such behaviour begins after a perceived injustice which assumes a special meaning for the individual and goes on to unlock litigious behaviour. Many such individuals will not initially arouse suspicions as they will often be very friendly towards those whom they believe are helping them in their litigation. It is only when their demands become more and more intense and they become less able to be pleased that the individual’s true personality starts to emerge.

Persistent Delusional Disorders

This is a group of disorders in which long-standing delusions constitute the only or the most
conspicuous clinical characteristic. The relative importance of genetic factors, personality
characteristics and life circumstances in their genesis is uncertain and probably variable. Not all delusional disorders are linked to excessive litigation. Some delusions will result in litigious
behaviour while others will not. The condition entitled “Paranoia Querulans” probably represents the archetypical form of delusional disorder linked to excessive litigiousness.

Paranoid Schizophrenia

This is the commonest type of schizophrenia in most parts of the world. The clinical picture is
dominated by relatively stable paranoid delusions but is usually accompanied by hallucinations particularly of the auditory variety. While the nature of the delusions or hallucinations might lead one to predict that the person will become excessively litigious, the individual will often have become so disorganised and so lacking drive and motivation by his illness that he is unlikely to become morbidly querulant.

Paranoid Thinking in the General Population.

How common are paranoid thoughts and ideas in a non-clinical population? Freeman et al in a
2005 study carried out an internet survey of 1200 individuals who completed a 20 item self report paranoid check list. This study found that approximately 1/3rd of the group admitted to paranoid thoughts occurring regularly (at least weekly). These thoughts and feelings included a perception of hostility in others, feelings of being watched and criticised and suspiciousness regarding the motivation and behaviour of other people. An increased level of paranoid thinking was seen in individuals who had an avoidant coping strategy, a negative attitude to emotional expression, submissive behaviour, lower social rank and a feeling of lack of control over their lives. Thus, this survey suggests that there is a significant level of paranoid thinking in the general population which, under certain circumstances, could quite understandably progress to litigious behaviour and perhaps even morbidly querulant behaviour.

Some Demographics

It is quoted that the age of onset of morbidly querulous behaviour is generally between 40 and 60 years of age. The number of males and females indulging in this behaviour is equal. Astrup in 1984 suggested that 10% of such individuals spontaneously recovered but it is felt by many other observers that the condition runs a chronic course with periods of quiescence followed by outbursts of litigation but with a generally poor lifetime prognosis. It is a widely held view that the morbidly querulant are treatment resistant but this is based more on clinical impression rather than on any systematic study. I have already said that it would probably be very difficult to study psychiatrically a cohort of such individuals as they do not view themselves as ill and would not see a psychiatrist.

Management Issues

If the individual has a mental illness then this might be treated but we come back again to the
problem of getting such individuals to view themselves as being mentally ill and persuading them to seek treatment. Personality disorders are traditionally viewed as being very difficult to treat and paranoid personalities are highly unlikely to engage in any psychotherapeutic process.

The morbidly querulant often focus on personal vindication and retribution and this fits badly with court-based litigation which is geared to provide reparation and compensation. Such people are searching for outcomes that court procedures simply cannot deliver.
There are some study findings which suggest those factors which are usually present from the outset of excessively litigious behaviour and which potentially provide an early warning sign but this does not greatly help in suggesting how such disastrous cases can be aborted early.
It has been suggested that litigants might be inducted into the legal process to identify and counter unrealistic goals. There is debate about whether such individuals should have a single point of contact in their litigation or whether a mutually supportive team approach in the relevant legal department would be better. Individuals facing the morbidly querulous need to maintain a real interest and attentiveness to the litigant yet stay relaxed and detached – doing their best not to get drawn into the individual’s more aberrant behaviour. Judgement should be suspended i.e. “I cannot accept your view but I respect it”. Some of the above measures may help but much further study is required into managing this complex problem.

In Defence of the Litigant

In 2005, the Law Chief called all Litigants "paranoid". Mr Arpad Toth disagreed with this comment and proceeded to dissect the Lord Chief' Justice's arguments.

In Defence of the Litigant

Re.: Independent article dated 30th September 2005 entitled “Law Chief hits out at litigants “ who won’t take no for answer”.

The above article, if accurate, is inconsistent with the reality that litigants in person [LIP] have to endure and exhibits a remarkable lack of insight into the LIP condition from both the scientific and legal perspective. It is instructive to read the reports of Prof. Richard Moorhead [Litigants in Person] commissioned by the Dept. of Constitutional Affairs [DCA] published March 2005 and the report of Alvaro Gil-Robles [Commissioner for Human Rights] published 8th June 2005 where it can readily be seen that the statements made in this article are without support. Consequently the reasoning and criticism of LIPs put forward by the newly appointed chief justice is wrong.

Mr. Nicholas Addison Philips, the new chief justice, complains about a number of things including the refusal of LIPs to “happily” accept decisions of judges which, he says, was previously the case and, as a consequence of the growth in international “rights culture” and the cuts to legal aid, a breed of “obsessive” litigant has emerged who refuses to accept British justice, i.e. “obsessive litigants who won’t take no for an answer”. He further complains that this is expensive to the court of appeal both in terms of time and cost. He amplifies his point by saying that some 90% of the 40% of cases brought by LIPs to the court of appeal disclose “no arguable case” or are “wholly without merit”. He also relies upon statements made by one Dr. Frank McManus, a psychiatrist, who apparently claims that the LIPs exhibit “characteristics” which include “high levels of delusion, self-hate, and a need to give meaning to an empty life” and because “they did not accept their conditions nor present a danger to themselves or others, they escaped the attentions of the mental health system”.

It appears that Mr. Philips is suggesting that judges are infallible and, like Caeser’s wife, beyond reproach. Is he really suggesting that judges never mislead or otherwise get things wrong? Is he not aware of his [relatively] recent predecessor, Peter Taylor, and his/his team’s conduct in the Guildford Four case? Have there really been no serious failures by the courts? Is the Birmingham Six case just an urban myth? Perhaps Denning famous pronouncements in the same case never happened? Belmarsh internees anyone?

In order to see whether these complaints by Mr. Philips and the claims made by him and Dr. McManus stand up to scrutiny it is necessary to look at the facts.


Judges are no more than legal tradesmen who have applied for, and have been accepted for, a job as an employee of the DCA [formerly called the Lord Chancellor’s Dept.]. They have not undergone any proper or prolonged training nor sat any examination in their application and acceptance for the job. They have all the foibles and weaknesses of any other member of society including, but not limited to, substance abuse and a predilection for proscribed materials. They bring to each case their own intellectual baggage and prejudices. They are not superhuman or super intelligent and on different days, depending upon their emotional and intellectual state on the day and subject to any media influence that might have been prevalent, will judge a case subject to their own obsessions, paranoias and prejudices.

Nor do they always read all the material that they were given to read. There is incontrovertible evidence that documents provided to courts/judges have not been read yet the judges handed down a decision with an incomplete, or indeed, no understanding of the matters.

Judges are unlikely to have been in the position of having to defend or bring proceedings in their own name [often without any assistance] in the face of contradictory or incomplete or faulty information, intransigence and obstructions by court employees, including judges. They are therefore in no position to appreciate the trials and tribulations faced by LIPs who merely approach the only venue available for resolution to a controversy.

Judges, and their work, are not subject to contemporaneous peer review or any scientific rigour whatsoever and the frequently adjudicate upon issues in which they have no grounding or education. How for instance can a judge who has no medical expertise whatsoever weigh up the competing technical arguments put forward by, say, a battery of doctors? Yet they do with the unfortunate result that they believe that they understood the technical arguments when in fact they haven’t and consequently produce miscarriages of justice.

In a recent Court of Appeal case [Durant v FSA], the judges demonstrated a complete lack of understanding into the workings of computer systems and then based a judgement on their own misconceptions of same.

Nor can it be said that judges are masters of their own trade. Prof. Moorhead writes in his report,

Many of the judges commented on the problems caused by unrepresented litigants being without the requisite legal knowledge to conduct their case. Judges felt that the lack of legal knowledge put themselves into a difficult position as they too would not know the relevant law all of the time, and researching points themselves was not always an option because of a lack of resources within the courts. [emphasis added]


Whether judicial research corrects the problem seems debatable. It is possible that legal points are missed (a judge who, understandably, does not know the law in an area, may not know that a point has been missed) … [emphasis added]

This raises important questions such as;

Should a judge without the requisite legal knowledge judge a case? How is a litigant to know that the judge does not posses the relevant legal knowledge? Should a judge declare his ignorance of the particular law/laws on the case and, if so, how is a litigant, who would naturally assume that the judge is expert or at least knowledgeable in that/those law/laws, to deal with the judge? Why should he, the litigant, accept the judge’s ruling? Is this not a case of the blind leading the blind? Is this not a case of decisions being made on the hoof?

In addition, there is incontrovertible evidence of judges handling evidence recklessly, manufacturing evidence, claiming to have read non-existent documents in the case, inventing versions of facts that neither party to the case has ever put forward, yawning, not paying attention to LIPs, permitting ambush and using legal jargon that only serves to confuse the parties and the judge himself.

Moreover, judges, under the cloak of “judicial independence” are answerable to no one. The use of “judicial independence” has been used to obviate any detailed scrutiny into the judicial process and even serious failures do not result in any action being taken against the judge concerned. This protectionism must be contrasted to other trades and professions where sanctions including deregistration are available. Until very recently there has been no effective mechanism to complain about the conduct of judges. The Lord Chancellor has now introduced a mechanism but even this is circumscribed in such a way that it obviates any criticism about a judge’s professional activities and is arguably neither transparent nor fair but even this system is about to become even less transparent and fair in April 2006 when the chief justice’s office will take over the disciplining of judges.

Judges are frequently criticised for being unfair. In the Belmarsh cases there was clear unfairness which was only [partially] remedied by the House of Lords. In that case the Appeal Court judges were perfectly content to allow the continuing imprisonment and suffering of people who were not charged with any offence whatsoever and ruled that “evidence” obtained by torture can be used in a British court. In so doing those judges brought the judicial process, the judicial office and themselves into disrepute. There was no sanction applied to any of them or at least none made public. At this juncture it is interesting to note that British jurisprudence has been severely criticised by the European Court of Human Rights for its many failures including this case. See for instance the report dated the 8th June 2005 of Mr. Alvaro Gil-Robles Commissioner for Human Rights at paras. 26 and 27. See also the Independent, page 6 Monday, the 6th October 2005 where it is reported that the UK has been found in breach of human rights over 100 times by the ECHR. How is it that British judges permitted those breaches?

Judges are also frequently lampooned for being “out-of-touch” with the ordinary man and of being ignorant of ordinary life and issues. Quotations attributed to those judges indicate that they are divorced from real life. In failing to acquaint themselves with ordinary life and then pontificating on the instant case they brought the judicial process, the judicial office and themselves into disrepute and ridicule. There was no sanction applied to any of them or at least none made public.

Compare and contrast the judge’s condition with that of any other profession. A doctor, for instance, is required to undergo revalidation every five years in order to satisfy his regulatory body of his competence. This is necessary to ensure that doctors are up-to-date with procedures and developments so that any professional failure which may result in an adverse life-altering or life-threatening event be obviated. In addition, doctors are required to train/retrain in any new medical discipline in which they wish to practise for obvious reasons. Would any patient be content to undergo neurosurgery by, say, an untrained osteopath?

The law intrudes into many, if not most, aspects of ordinary life and trade. For there to be effective and informed and consistent decision making in a controversy it is necessary for judges to have specialist training in, or knowledge of, the subject matter concerned. At present there is little, if any, specialist training with the concomitant result that judges adjudicate with an inadequate understanding of the facts, the technicalities or, indeed, the relevant law. Even a Crufts judge is required to be fully conversant with the desirable features/attributes of the breed/breeds before he embarks on a judgement. How can it be that in the courts the essential requirement of being knowledgeable in the matter, or matters, there to be judged this basic requirement is optional?

Judges wield much power and their actions and failures may be just as potent an event to a LIP as a medical failure. Entire lives, livelihoods and families may be destroyed by a careless or negligent action or remark yet there is no overview or supervision or sanction. Doctors, solicitors and barristers are regulated why should judges be treated differently?

Judges are not infallible, if they were, then there would be no need for appellate courts, i.e. Mr. Philips would have no job.

The law

The law is not a science. At best, and being charitable, it is an art and as an art it is subject to subjective interpretation [see above re. prejudices etc.] and therefore there is little in the way of absolutes. For this reason different lawyers have different takes and approaches to the self same issues and why the exact same case would be judged differently by a different person. Indeed, the law recognises that the same facts and law may throw up different interpretations and decisions on both and therefore discourages a case to be tried twice. However, if the same facts and law are capable of being treated and adjudicated differently by different persons then there can be no absolute and it is only right and proper that an adverse or unpalatable decision be tested by the appellate courts. Indeed, the very purpose of the appellate courts is to do just that.

Moreover, it is not unknown for the courts, even at the highest levels, to get matters wrong repeatedly and for them to inflict suffering upon ordinary people for years upon years despite allegedly maintaining the highest [criminal] standards only to realise decades later what was obvious at the outset.

If the law and the rules of court [CPR] was drafted and administered in a way that allowed ordinary people of modest means to present their cases in plain and ordinary language then many of the complaints that Mr Phillips puts forward would be obviated.

In the year 2000, the Woolf reforms were intended to simplify and streamline the legal processes thereby giving the ordinary man effective access to the courts. Unfortunately, the Woolf reforms merely tinkered with minor peripheral matters without addressing the fundamental issues and hurdles faced by LIPs. Examples of peripheral tinkering include – dispensing with the word “plaintiff” and substituting “claimant”. The fact of the matter is that the entire legal system is, and has been for a very long time, in sore need of root and branch reform in order for the common man to have effective access to justice.

The CPR, far from being streamlined and simplified, adds further complications and obstacles that were never there before, e.g. permission to appeal [see Plotnikov and Woolfson below]. Moreover, the language used in law and in the CPR is both archaic and often grammatically wrong thereby rendering them indecipherable to legal tradesmen and the public alike hence the need for interpretation. Because of this indecipherability, the legal trade often, if not usually, misinterprets its own rules, statute and case law. These failures are what contribute to LIPs having to appeal to a supposedly better informed judge in the hope of rectifying errors.

Indeed, the rules of the court are written for the benefit of those who work in the legal trade and this has been commented upon by eminent writers and intellectuals for centuries including Shakespeare, Pope, Swift, Dickens to name but a few. The legal trade has not changed substantively for centuries.


There is a long history of judicial failure and one merely has to look at the Belmarsh cases, the Pinochet case, Guildford Four, Birmingham Six and Kelly Inquiry to name but a few and these are just the very high profile cases. In the Kelly inquiry, Mr Hutton [personally selected by Downing Street] failed to exhibit any fairness or evenhandedness when the parties hostile to Mr Blair sought to put questions to Mr Blair. Mr Hutton, thought it acceptable that Mr Blair should go unchallenged regarding his statements about Dr Kelly. Mr Hutton then produced a decision in which only he and Downing Street could put any faith and matters in that decision have been proved to be incontrovertibly wrong.


Mr Phillips complains about LIPs using the oral renewal of an application for permission to appeal as a “mini-appeal process”. The solution is simple, restore the age old principle of automatic right of appeal. Up until the year 2000, everyone had an automatic right to appeal and this had been the case for centuries. The removal of this right to appeal is what has caused the situation of which Mr Phillips complains. Restoration of this right will make the process more streamlined. Indeed, having to go through the permission process merely adds an extra tier [or tiers] to the judicial process. An LIP, anxious to present his case properly is naturally keen to point out the various failures of the lower court which may not be apparent to an appellate judge sitting in his ivory tower.

Nor is it always true that LIPs are ill informed as to the law or that their cases “have no arguable case” or that they are “without merit”. There is much case law demonstrating the prowess of LIPs studying and creating new principles and case law, see for example MacDonalds v Morris & Steel. In that case the ECHR ruled that the defendants never had a fair trial [as they were denied publicly funded legal representation] which is something that was completely overlooked by the trial judge and the court of appeal. For further evidence one needs look no further than the recent ECHR ruling on the rights of prisoners to vote where the action was formulated and taken through the courts by an ex-prisoner, self-taught in law, who is now regarded as possibly the foremost expert on penal matters so much so that it is said that the Home Office now consults him!

If a LIP should feel that a wrong decision has been tendered and he believes that there has been a failure in the lower court[s] then he should have the right to bring that failure to the attention of the appellate court for a remedy and the appellate court should rejoice that he has so done. It is only by bringing these failures to the appellate court’s attention can the court system as a whole learn from its mistakes.

That a LIP should apply for permission to appeal is not, and cannot be, viewed as “obsessive”. To so say is both pejorative to the LIP and perverts the real meaning of the word which carries with it unfounded and unevidenced connotations of mental illness. It would be far fairer to say that the LIP is determined or, as Prof. Moorhead puts it, persistent and, given the numerous judicial failures mentioned elsewhere in this analysis, that determination cannot be criticised. Nothing here is to say that LIPs are never obsessive but to say that 90% of the 40% of cases brought by LIPs is “without merit” or “unarguable” is an exaggeration. Even a case that is “implausible on paper” should never be dismissed. Has Mr. Philips not read Eady J in Denise Lynn Merelie v NewcastlePrimary Care Trust?

If “obsession” is a sin, then given that the courts should be “obsessive” in their search for truth and justice why is it unacceptable for a LIP to be so?

In any event, at least in the first instance, the numbers of “obsessive” LIPs are not significant. Prof. Moorhead found,

The obsessive litigant …. has a popular and powerful place in the legal imagination. There was a similar, if only slightly less marked, tendency to speculate on a link between such litigants and mental health problems. [emphasis added]


Obsessive/difficult litigants were a very small minority of unrepresented litigants generally. [emphasis added]


During the course of the research, the picture which emerged from both our scrutiny of court files, and the interviews we conducted, was one in which the number of unrepresented litigants in the first instance proceedings who could be categorised as obsessive (or vexatious) was very small. We asked judges, court staff and lawyers how often they encountered unrepresented litigants who they considered to be difficult or even vexatious. District judges, for example, variously described the proportion of such litigants as being:

de minimis

a fraction of a per cent

a tiny proportion, very, very tiny [emphasis added]


The Circuit Judges reported encountering obsessive litigants perhaps two or three times a year. [emphasis added]


It could simply be that the ‘mad, dangerous and stupid’ litigants are what occupied their thoughts because they posed the greatest challenge to their resources and skills, or that they provided better stories, but a notable effect of this tendency was the stereotypical portrayal of unrepresented litigants which in fact was not borne out by a more considered analysis of how often unrepresented litigants become obsessive. [emphasis added]


The characteristics of obsessive litigants are often taken to be the paradigm for unrepresented litigants generally. Making far-fetched or meritless claims, fruitless applications, and indulging in abusive or uncooperative behaviour all occurred in the courts we researched but it was a long way from being the dominant behaviour of unrepresented litigants in the courts we studied. [emphasis added]

If the numbers in the courts of first instance are very small [the numbers averaged between four and six] then the numbers in the Appeal Court is even smaller although, expressed as a percentage, the numbers might appear to be higher.

Mr. Philips comments that in past times LIPs “happily accepted judge’s rulings” but provides no evidence for this statement. That previously LIPs might have been more deferential to DCA employees is not, and cannot be, the same as saying that they “happily accepted…” etc. Could Mr. Philips’ comments be interpreted to indicate that he has a deep underlying inferiority complex who yearns for a time when he and his co-employees were “happily” lauded without question? Could Mr. Philips’ comments indicate a certain arrogance or superciliousness viz. the common man/LIP? Would Mr. Philips be content if these epithets were directed at him?

Over the years society has become better educated and more aware that wisdom is not the exclusive province of DCA employees and certainly does not emanate from beneath a horsehair wig even a full-bottomed one. There is no reason for judges to enjoy a deference not enjoyed by any other member of society. Respect has to be earned everyday and the job title of “judge” does not entitle the current jobholder to any respect or deference beyond that due to any other member of society. The times when ordinary people were required to tug their forelock in obedience have long gone and may those times never return.

As for Mr. Philips’ comments on “rights culture”, what is so alien or objectionable about that? Why should the common man not seek to expand his participation and benefits within society? Is it not the case that many, if not all, the benefits, rights and freedoms currently enjoyed by ordinary people are the products of ordinary people availing themselves of any mechanism, including the courts, to extend those benefits, rights and freedoms to the many rather than the privileged few as was previously the case? Why should this process stop now? We have not yet reached Nirvana or built Jerusalem.

The UK is one of the few developed countries in the world without a bill of rights or other guarantees of freedoms. What rights the ordinary man has is, in part, dictated by judicial comment in case law which varies from time to time and often subject to the sociological and/or political fashion of the day. Whereas this may be acceptable to some in certain situations it may not be acceptable to others. The growth of international “rights culture” in a democratic country and the awareness of same cannot be said to unhealthy. Indeed, it is the awareness of rights that keeps in check the excesses of the authoritarian tendencies of the state. The growth of a “rights culture” cannot be any reason for judges to complain about any burden [perceived or otherwise] on the courts which belong to the people for the resolution of disputes and the protection of their belated hard-won rights.

If Mr Phillips had any experience of what an LIP has to go through, he would realise that any paranoia that might be exhibited by an LIP is usually well founded [Prof. Moorhead provides a number of examples of how the court and its staff fail the litigant]. A case presented by an LIP is frequently, if not usually, ignored. When the identical case is presented by a legal tradesman it is accepted and acted upon. This is not to say that the legal tradesman said anything different or said anything in a different way but that judges pay attention to lawyers more so than they do to LIPs. In short LIPs are frequently treated as second class court users.

Costs to Appeal Court

Mr Philips complains about the cost in time and money that the Court of Appeal has to bear when hearing LIPs. What price justice? Mr Philips should know of the ”overriding principle” in law namely, that the administration of justice is paramount. Justice must not only be done but seen to be done. Judges and other legal tradesmen are required under the “overriding principle” to interpret the law in such a way as to bring about justice. In the case of LIPs this usually does not happen for the reasons mentioned elsewhere in this analysis. Any costs [additional or otherwise] to the Court of Appeal in dealing with LIPs is a matter of finance and political will and should not be used to castigate LIPs who are doing their very best under extremely difficult, not mention, hostile conditions.

Lack of Legal Aid

Mr. Phillips rightly points out that the legal assistance is not nowadays usually available. When the legal aid scheme was introduced in the late 1940s, 98% of the population was eligible for legal assistance. Now, the opposite is true. Access, and in particular, effective access to the courts is enshrined in both common law and statute. However, because of the lack of legal assistance effective access to the courts is denied. What is a LIP to do? It is now the case that unless a party has deep pockets, that party is constrained to present his case in the best way he can in the face of considerable adversity. Mr Phillips should not complain about LIPs, they do not enjoy equality at arms. They are the victims of political and [often] judicial failure and the soaring, not to mention dizzying, costs of legal representation.

Dr. McManus

Regarding statements attributed to Dr Frank McManus, a consultant psychiatrist about LIPs and their “high levels of delusion, self hate and a need to give meaning to an empty life”. These are without any apparent scientific foundation and it must be asked which peer reviewed study/studies does he [and Mr. Philips] rely upon and, further, if they exist, were they accepted by the psychiatric community? Given also that Dr. McManus says that obsessive LIPs “escaped the attention of the mental health system” because they posed no danger to themselves or others, it may be asked how did those LIPs come to his own attention?

Research at the Royal College of Psychiatry has revealed no study into LIPs. Moreover, there is no mention of this condition in the Oxford Textbook of Psychiatry [latest edition]. In this book, the “bible” of psychiatry, the nearest that can be found to this topic is “Querulant delusion” which was first studied by Krafft-Ebbing in 1888. Since then this condition has been abandoned by the psychiatric profession but not, it would appear, by the legal trade which continues to hold it in its “imagination”. The features of “Querulant delusion” have, at best, a tangential relationship to Dr. McManus’ declared features. In any event the condition, if it exists, is circumscribed in the Oxford Textbook as follows;

It is extremely important that this diagnosis is made on clear psychiatric grounds rather than political grounds. [emphasis added]

It must now also be asked if Dr. McManus and Mr Phillips are acquainted with the Royal College of Psychiatry’s Anti Stigma campaign. From this article, it appears not.

Dr. McManus appears to be making statements on matters for which no evidence has been presented. Even if there was a germ of truth in Dr. McManus’s attributed statements, those statements could not be applied to all LIPs as it could be contrary to the basic principles of fairness and psychiatry to stigmatise all LIPs in such a way. This should be known to both Dr. McManus and Mr Phillips. In the USSR, those who refused to accept the “wisdom” of judges were labelled as “paranoid schizophrenics or suffering from other personality disorders”. Might not the same be said of judges who are themselves disgruntled at LIPs’ refusal to “happily” accept their rulings?

Further DCA Study

The DCA commissions studies into the legal process. Amongst those studies was a study written by Plotnikov and Woolfson entitled “Evaluation of the impact of the Reforms in the Court of Appeal” dated March 2003 when Mr. Philips was Master of the Rolls. In the executive summary it is written as follows:

Litigants advised by the Citizens Advice Bureau at the Royal Courts of Justice (CAB at the RCJ) had great difficulty in understanding the appellate routes. The problems were compounded because lawyers, court staff and judges in other parts of the civil justice system also had a poor grasp of jurisdictional issues. [emphasis added]
Most unrepresented litigants found the procedures hard or impossible to understand.
Most judicial interviewees admitted that they were insulated from the problems litigants experience in complying with the procedural aspects of the new rules. Some Lords Justices were aware of problems with the new appellate routes. Only one thought the new routes were simpler than before. [emphasis added]
Lawyers within the CAO were clear that the new rules were inflexible and that the objective of simplifying procedure had not been achieved. Lack of understanding of the rules was common among lower courts and solicitors as well as unrepresented litigants. [emphasis added]
There is a daunting range of information about the appeals process which litigants can consult but not all of it accurately reflects procedure in the Court of Appeal. [emphasis added]
The extension of the requirement for permission to appeal was the most widely welcomed aspect of the reforms among Lords Justices. It was generally acknowledged to be effective at filtering out unmeritorious appeals. [emphasis added]
Some Lords Justices expressed concern about differential treatment of represented and unrepresented litigants in respect of applications for permission to appeal but most felt the practice was justified. [emphasis added]
Lords Justices were generally sceptical about any claim that the new rules had reduced the cost of appellate litigation. [emphasis added]
Appellate practice in the High Court differed in a number of ways from that in the Court of Appeal and this was a potential source of confusion for litigants. [emphasis added]
From this document is can be seen that the present Appeal Court rules benefit the judges and not the court user, including solicitors, who experience confusion. In other words, the law serves those who serve the law.

In addition, even the “judicial interviewees” admitted insularity from the LIPs’ experience and they too were concerned about “differential treatment” of LIPs. Nor is the system cheap to administer.

Given all the problems, can it be right or fair to castigate LIPs? LIPs did not devise the system they are merely victims of it. Would it not be better to restructure and simplify the system and provide proper training to judges, court staff and lawyers alike? Is it right for Mr. Philips and Dr. McManus to shoot from the hip?

In conclusion

If there can be such a thing as a “cowboy” or “rogue” builder, plumber, doctor then why is it so inconceivable that there can be rogues amongst judges?

A judicial oath is no guarantee of day-to-day good behaviour or competence particularly when there is no policeman to ensure same and given the numerous examples of judges failing in their most basic duties to examine and weigh the evidence or apply the principles of fairness or indeed the civil procedure rules (CPR). Why indeed should LIPs take “no” for an answer?

There is more than a germ of truth in what is, or ought to be, the courts motto:-

“Usually Wrong but Never in Doubt”

N.B. It is perfectly possible to substantiate all that is said in this riposte with documentary evidence although somehow it is doubted that the challenge will be taken up.