Campbell v Campbell  EWHC 2237 (ch) (13 September 2016)
This decision concerns the extent to which the costs management regime applies to the costs of a litigant in person and the scope of a litigant in person’s recoverable costs where they obtain legal assistance from a solicitor or barrister.
On 12 November 2015 Deputy Master Nurse directed that a costs management hearing should take place and this was eventually listed to take place on 19 August 2016 after a period of delay due to an unsuccessful appeal by the Defendant. The Claimant had instructed solicitors up to 26 May 2016, but thereafter became a litigant in person. He continued to be represented by Leading Counsel on a Direct Access basis. He also had assistance from a Jersey Lawyer and Junior Counsel (via the solicitor).
During the course of the appeal the Deputy Master considered whether the Claimant was entitled to recover any of the expenses he had incurred in obtaining assistance from the Jersey Lawyer. The Deputy Master concluded that services provided by a lawyer qualified in another jurisdiction did not constitute "legal services" for the purposes of CPR 46.5(3(b) and therefore they were not recoverable by the Claimant.
Whilst the sums in issue may exceed £10 million, the claim is not automatically exempt and neither party had made an application for a direction that costs management should not apply. The Claimant filed a costs budget dated 5 August 2016 which provided for future costs in excess of £315,000. Incurred costs were £547,620.99. Whilst neither party debated the Court’s jurisdiction to make a costs management order in respect of the Claimant’s costs, the position is not entirely clear and Chief Master Marsh considered it might be helpful to set out his reasons for concluding that such a power exists. In a complex cases such as this where the Counsel is instructed on a Direct Access basis, the litigant in person’s costs may be substantial. Whereas CPR 3.13 expressly exempts litigants from the requirement to file and serve a costs budget, albeit they are free to do so, CPR 3.15 provides that the Court may manage the costs to be incurred by any party in any proceedings. Chief Master Marsh then referred to PD 3E which provided that where the parties are not required to file and exchange costs budgets, the Court has a discretion to make an order requiring them to do so.
A litigant in person may opt to serve and file a budget or the Court may order a litigant in person to do so. In such circumstances the Court may decide to make a costs management order in relation to a litigant in person’s costs budget and, where a litigant in person’s costs are likely to be substantial, it may well be desirable to do so.
Also some interesting debate as to whether the barrister’s fees on a direct access basis are legal services or disbursements…
Click here for the full decision.