Practice and Procedure


PUBLISHED January 2, 2004

Where a costs certificate was issued and served on a defendant which inaccurately reflected the intended extent of cost protection, it was appropriate to allow the publicly assisted claimant to seek retrospective amendment of the certificate.The claimant ('H') sought determination of her liability for costs following her unsuccessful defence of a cross appeal from an award in her favour under the Inheritance } (Provision for Family and Dependants) Act 1975. H had issued proceedings claiming a beneficial interest in a property and a sum of money from the estate of her partner on his death, pursuant to the Act. H's claim for a beneficial interest in the property was dismissed, although H was awarded a sum under the Act and costs. H applied for public assistance in respect of her costs of an appeal against the dismissal of her property claim and a cross appeal by the defendants ('Z') in respect of the award under the Act and the costs order. A certificate was issued that referred only to representation as an appellant, with a cost limitation of ?7,500. H duly issued a notice to Z in those terms, save for the cost limitation, which was omitted. H's appeal was dismissed and Z's cross appeal was allowed, H being ordered to pay the costs. H produced a letter from the Legal Services Commission that confirmed its intention to grant funding for making the appeal and defending the cross appeal. It was agreed for the purposes of the instant hearing that the total costs of the combined appeal procedure should be apportioned as 25 per cent to H's appeal and 75 per cent to Z's appeal and that, subject to the question of public funding, H would be liable for these costs. H contended that she should be protected in respect of all of the costs of the appeal process, given the intended scope of the certificate. Z submitted that H was only entitled to be protected in respect of the costs of H's appeal.HELD: The wording of the notice was unambiguous and the use of the words "as appellant" made it clear that the public funding was limited to H's appeal and did not extend to Z's cross appeal. The Community Legal Service (Costs Protection) Regulations (SI 2000/441) para.3(2) provided that, subject to certain irrelevant exceptions, costs protection would apply only to costs incurred after the issue of the certificate. Whilst the Commission had the power to amend a certificate retrospectively, no decision had yet been taken to do so. Unless and until the certificate was amended, H would only be entitled to costs protection in respect of her own appeal. In the event that the Commission decided to amend the certificate to reflect what was intended and to back date it, and if a notice of amendment was duly served on Z, then it would follow that H would be entitled to cost protection in respect of all the costs. There was a powerful argument for saying that the Commission should not effect such an amendment without giving Z an opportunity to make objections. It would not be enough for Z to simply say that she would be prejudiced by the amendment, in the sense that she would be worse off, it would be necessary for Z to demonstrate that she may have acted in a significantly different way ha} the original certificate reflected the Commission's intention, R & T Thew Ltd v Reeves (No. 1) [1982] Q.B. 172 and R v Legal Aid Board ex parte Edwin Coe (A Firm) [2000] 1 W.L.R. 1909 considered. In the circumstances, it was appropriate that H be allowed the opportunity to make an application to the Commission to amend the certificate retrospectively.Judgment accordingly.

[2003] EWHC 3109 (Ch)