KA-2024-000244 - [2025] EWHC 2070 (KB)

The underlying litigation related to a contempt application brought by the Respondents against the Appellant for alleged breaches of an injunction order granted on 10 November 2021. The application was heard before Mr Justice Nicklin on 21 and 22 July 2022. Nicklin J dismissed the contempt application fully exonerating the Appellant. He awarded the Appellant her costs on the indemnity basis and certified the contempt application as being “totally without merit”. He made a civil restraining order against the Respondents, observing that the application had “no real prospect of success and/or served no legitimate purpose”.

In contesting the contempt application, the Appellant, a solicitor herself, instructed Scott Moncrieff & Associates Ltd (“SMA”) on or about 6 July 2022, securing legal aid for her representation. However, her application for legal aid to instruct King’s Counsel (Mr Ashley Underwood KC) was refused by Nicklin J. Despite this refusal, the Appellant proceeded to instruct Mr Underwood KC privately.

The assessment of the Appellant’s costs between the parties for successfully defending the committal allegation subsequently came before the Judge in the Senior Courts Costs Office (SCCO) on 4 December 2023.

The Appellant had the benefit of a criminal legal aid certificate under section 16 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). It was submitted that it is something of an anomaly that contempt proceedings, while largely civil in nature, are classified as “criminal proceedings” for the purposes of legal aid under LASPO.

The Appellant sought to recover costs at private client rates, contending that her retainer with SMA provided for a between the parties’ rate of £400 per hour, and/or that she could revoke her legal aid retrospectively to rely on the retainer rate. She submitted that preventing recovery at between the parties’ rates would lead to an absurd result and undermine access to justice, relying on observations made in R (on the application of E) v Governing Body of JFS [2009] UKSC 1, [2009] 1WLR 2353, and King’s Lynn and West Norfolk Council v Bunning [2016] EWCA Civ 1037 [2016] 6 Costs L.O. 927, as supporting the principle of full recovery. She also argued that the Legal Aid Agency (LAA) had assessed her costs at a higher figure than the rate contended for by the Respondents, and that the Costs Judge should not reduce this. Furthermore, she argued that if counsel’s fees were refused under the legal aid provisions, there was no prohibition against incurring them privately and recovering them at between the parties’ rates.

The Respondents argued that the indemnity principle dictates that costs recoverable are limited to those which the legally aided party’s solicitors receive from the LAA, which, in the context of criminal legal aid, is defined by the relevant regulations. They pointed to the absence of a provision equivalent to Regulation 21 of the Civil Legal Aid (Costs) Regulations 2013 within the criminal legal aid framework, which expressly disapplies the indemnity principle for civil cases. They relied heavily on the reasoning in Liverpool Victoria Insurance Co Ltd v Khan and others [2022] EWHC B8 (Costs),which similarly concluded that criminal legal aid does not disapply the indemnity principle. They further argued that the Appellant’s retainer with SMA, if it purported to allow for higher rates, was an unlawful attempt to “top up” legal aid payments, contrary to section 28 of LASPO.

In his judgment of 18 July 2024, the Judge concluded that the indemnity principle applied and was not disapplied by any primary or secondary legislation in criminal legal aid cases, in contrast to the position in civil legal aid cases. Consequently, he found that Ms McGivern’s between the parties’ costs were limited to the legal aid rates prescribed by the Criminal Legal Aid (Remuneration) Regulations 2013. He explicitly disallowed the recovery of King’s Counsel’s fees, finding that the instruction of leading counsel was not reasonable for what Mr Justice Nicklin had described as a “straightforward” case (a conclusion that is not appealed). He also rejected the argument that the LAA’s higher assessment of costs was binding.

At a further hearing on 20 November 2024, the Judge concluded the assessment, determining the final amount payable by the Respondents. The result of the assessment was that Ms McGivern’s bill, which had been claimed at £120,292.21, was assessed at the significantly reduced sum of £20,673.34. This figure was not only far below her claimed costs but also less than the £28,556.58 that the LAA had assessed as payable. This resulted in the Appellant owing a net balance to the Respondents.

An outcome by which the Appellant had to pay the Respondents was however the result of the reduction in her recoverable costs and the effect in costs of the Respondents’ offers to settle. The Respondents had made a Calderbank offer to settle the costs claim for £21,000 on 12 August 2022. Subsequently, a Part 36 offer of £33,000 was made by the Respondent on 5 September 2023. The final assessed amount of £20,673.34 was less than either offer. The Judge ordered Ms McGivern to pay the Respondents’ costs of the assessment proceedings. These costs were themselves substantial. The Respondents had claimed £80,048.74 for their participation in the assessment process and were awarded £53,044.65 on the standard basis until 26 September 2023, and on an indemnity basis from 27 September 2023, due to the Part 36 offer not having been beaten.

Unlike Ms McGivern, the Respondents were not legally aided, and their costs were not limited to legal aid rates.

The ultimate outcome, therefore, was that the amount Ms McGivern was able to recover was significantly less than her actual legal costs, while she was simultaneously ordered to bear a substantial portion of the Respondents’ costs of the assessment. This, the Respondents argued, was simply the usual consequence where a party turns down an early offer, persists in protracted litigation, and fails to beat that offer, thus negating the benefit of any underlying judgment.

The Appellant now appeals against the decision, contending that the determination that costs could only be recovered at legal aid rates was incorrect, and that these rates were incorrectly assessed at lower than the amount deemed payable by the LAA.