Recovery of costs by litigants in person

Was a litigant in person entitled to recover fees charged by a barrister who for a period during the case did not have a practising certificate? Michael Mullin reports on a London borough's success in a recent High Court costs appeal.

CPR 46.5 limits the recovery of costs by litigant in person against another party by setting out various gateways through which costs can be recovered. CPR 46.5(3)(b) permits the recovery of “payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings.”

The question on the appeal in Francois v The London Borough of Waltham Forest [2024] EWHC 1162 (KB) was whether a litigant in person could recover fees charged by a barrister for services provided during a brief period where that barrister had no practicing certificate. The barrister in question having forgotten to renew his practicing certificate in time.

In previous cases the Court of Appeal had found that ‘legal services’ in CPR 46.5(3)(b) meant “services provided by or under the supervision of a lawyer” (United Building and Plumbing Contractors v Kajla [2002] EWCA Civ 628) and “the lawyer must be someone who can be expected to be competent to supply services “relating to the conduct of the proceedings”, which will be proceedings in this jurisdiction” (Campbell v Campbell [2018] EWCA Civ 80; [2018] 1 WLR 2743).

In this case the Appellant argued that an unregistered barrister (i.e. one without a valid practicing certificated) was still a lawyer, in the sense the were professional qualified, and was still subject to a degree of regulation by the Bar Standards Board and thus their fees could be recovered under CRP 46.5(3)(b).

Waltham Forest successfully argued that there was no real distinction between a qualified but unregistered barrister and the foreign lawyer and former solicitor in Campbell, who had originally qualified in this jurisdiction but was no longer on the roll of solicitors and had no practicing certificate. The council further argued that creating a distinction between non-practicing solicitors and unregistered barristers (which would be the inevitable result of accepting the appellant’s arguments) would be unjust and is unnecessary because in truth unregistered barristers are subject to very limited regulation. Many of the relevant rules relate to the requirement not to mislead potential clients as to their limited status. There is no requirement on unregistered barristers to maintain insurance, to complete a programme of continuing professional development and they are not subject to the jurisdiction of the legal ombudsman service.

The Court, dismissing the appeal, found that:

• Charges made by an unregistered barrister do not fall within the scope of CPR 46.5(3)(b), as interpreted by the Court of Appeal in Campbell (and earlier decisions)
• Given that an unregistered barrister cannot act as a ‘barrister’ within the meaning of the CPR, they are to be treated as no different to any other professional such as the debt collector, tax adviser or foreign lawyer, all of whose services have been found not to qualify for recovery under CPR 46.5(3)(b).
• The limited regulation of unregistered barristers by the BSB does not create any meaningful distinction between non-practicing solicitors and unregistered barristers.
• CPR 46.5(3)(b) allows recovery of payments “reasonably made” but that cannot extend to payments yet to be made in respect of which there are very real issues as to whether they are payable.

Michael Mullin is a barrister at Five Paper and appeared for the council. He was instructed by Kim Travis of London Borough of Waltham Forest.