Arkin v Borchard
Lines  Commercial Court
- access to justice - public policy in conditional fee
The case was a maritime dispute, where the former shipping company
director Arkin brought an £80 million case under a conditional fee
agreement. He arranged a complex contingency fee agreement with
professional claims funders who paid for experts in return for 25% of any
Mr Arkin claimed loss of profits on the basis that the
defendants were in breach of Article 82 of the EC Treaty.
Although Mr Arkin lost the defendants had to pay their own legal costs of
Defendants who succeed in commercial disputes should not be able to claim
back their costs from professional claims funders as it would hinder
access to justice.
"The fact that it is the policy of
the law to give effect to access to justice permitting an impecunious
claimant to sue and so to expose an ultimately successful defendant to
shoulder the burden of his own costs..."
there was no infringement of Article 81 and Article 82, the
‘irrational’ behaviour of the claimant would have prevented damages being
strong evidence would need to prove predatory price-setting.
lowering the prices only in areas where there was competition was held to
be an acceptable response to a new entrant. It was only intended to win
Comment The court
had to decide whether to deter weak claims or accept the widening access
to justice. The court decided that access to justice was such an important
consideration that it should prevail, which was hard on the defendant who
had done nothing wrong.
Benham v United Kingdom
[Legal Aid right to legal aid where liberty at stake]
D was voluntarily unemployed and through culpable neglect had failed to
pay his poll tax. Magistrates at Poole did not order 'legal aid' and so he had no
legal assistance. D was sent to prison for 30 days.
Held: The Divisional Court ordered his release after only 11 days.
The magistrates, although acting in good faith had erred in law, D was not
eligible for compensation.
Where deprivation of liberty was a real possibility The European Court of
Human Rights held that Art.6.3(c) gave him a right to legal
representation. This right had been violated.
D's imprisonment following due process of law had not been a violation of
his rights under Art.5.1,
Now, anyone facing a
real prospect of imprisonment for failure to obey a court order is
entitled to the assistance of the duty solicitor in court, or to
assistance from CLS.
Campbell v MGN
Limited  HL
[Funding of legal services - CFAs do not interfere with the media’s right to
freedom of expression]
C, Naomi Campbell sued MGM newspapers (Daily Mirror) for breach
of confidence after they published photographs and additional details
concerning alleged drug treatment.
The House of Lords ordered MGN to pay Ms Campbell’s costs. Her appeal to
the House of Lords had been funded by way of a conditional fee agreement,
with a 95-100% success fee (although it is thought she could afford a
conventional fee arrangement).
This meant that although her legal costs came to around £300,000, nearly
£600,000 could be claimed from the Mirror.
MGN claimed that such a liability infringe its right to freedom of
expression under Article 10 of the European Convention on Human Rights.
Also, CFAs could lead to a newspaper self-imposing restraints on
publication. Also, it might also lead to media defendants being
significantly tempted to pay up something to be rid of unmeritorious
litigation for purely commercial reasons.
Campbell argued that conditional fee agreements were necessary to provide
the access to the courts required by Article 6 of the Convention.
Held: The regimen of CFAs and the imposition of costs and
success fees on the losing party is legislative policy which the courts
must accept. In addition, they held that there was nothing in the relevant
legislation which suggested that a solicitor, before entering into a CFA,
must inquire into his client’s means and satisfy himself that he could not
fund the litigation himself. Their Lordships recognised that CFAs could
have something of a chilling effect on newspapers exercising their right
to freedom of expression, but considered that if this were a problem, a
legislative solution would be required.
Gearing v DPP (2008) DC
Whole case here
[Provision of legal services - Criminal Defence
Service Direct delay in providing advice - drink driving procedure]
D a driver over the drink driving limit was
arrested. At the police station she
delayed by 23 minutes providing a second breath sample while she waited for the Criminal Defence Service Direct to ring back the police station. She alleged that the delay in receiving legal
advice was a serious breach of PACE.
Held: The Judge had discretion to allow evidence of
the defendant's refusal.
The judge said:
"Looking at those facts here, one asks the
question: what did this appellant know?”
He went on to observe that the appellant knew full
well what was going on.
She knew she did not need legal advice, as she knew
she had no physical or medical excuse for refusing the second test.
Magistrates' Court ex p Baker, R v (1997) QBD
[Legal Aid – payment of expert witness]
D drove with excess alcohol, but claimed a "special reason" not to be
disqualified in that her drink had been laced with spirits. She sought
judicial review of the magistrates' refusal of legal aid.
Held: D's case would require the evidence of an expert witness to
show alcohol levels, and the tracing and examination of witnesses to the
lacing. It would be in the interests of the court, as well as of D
herself, for legal aid to be granted.
RSPCA (2000) CA
[Legal Aid - jurisdiction]
D was cruel to animals and banned from keeping them. The animals were
transferred to the RSPCA, and therefore had to be paid for. D was ordered
to pay a contribution. On appeal against sentence (no appeal available
against costs) the Crown Court's increased the magistrates' order for
costs from £260 to £28,500.
Held: That the Crown Court had had jurisdiction to make the
1. in the case of an unsuccessful appeal, the Crown Court should hesitate
before interfering with an order for costs made by magistrates, and
2. the prosecutor should give the appellant ample notice of any intention
to ask the Crown Court to vary an order for costs.
Hughes v Kingston-upon-Hull
CC (1998) DC
[Legal Aid - lawfulness of contingency fees]
D was to be prosecuted for statutory nuisance because of the dampness in
the premises he occupied. He made a contingency fee arrangement with a
solicitor. The defects were remedied before the hearing. The proceedings
were withdrawn, the magistrate refused to make an order for costs against
the City Council.
Held: The decision in Thai Trading
was not binding because the
Court of Appeal had not considered an earlier decision of the House of
Lords giving certain Law Society rules the force of statute. Since those
rules clearly made contingency fee arrangements unlawful (especially in
criminal proceedings), the magistrate was clearly correct.
Legal Aid Board Ex
p. Duncan, R v QBD
[Legal Aid – Contracts – Irrationality - Legal representation - Mental
health review tribunals]
D, a solicitor, challenged the introduction of fixed contracts for the
Legal Aid Board's scheme for advice and assistance. D argued that fixed
contract was contrary to the common law right of unlimited access to the
court and of the statutory right of an entitled person to choose their legal
Held: The common law right was not absolute or unlimited. The Legal
Aid Act 1988 only gave a right of selection of a representative to those
entitled to advice and assistance not those merely eligible and the scheme
was not irrational.
Application for judicial review refused.
Legal Aid Board Ex
p. W, R v (1999) QBD
[Legal Aid - Family proceedings - Guardian ad litem]
A local authority was empowered to fund lawyers representing children in
High Court proceedings as
guardian ad litem
which a legal aid board had
refused to pay.
Maltez v Lewis
[Legal Aid – level playing field – imbalance of costs]
D instructed leading counsel to represent her, C had to make do with
junior counsel of only a few years
call. C claimed the "level playing
field" envisaged by the new civil procedure was not achieved.
Held: It is the fundamental right of every citizen to instruct the
counsel of his or her choice. The judge has discretion on costs and conduct
of the case.
Northavon DC ex p
Smith, R v  HL
[Legal Aid – small LA entitled to costs]
A test case for priority housing that would determine the rights of many
other people was unsuccessful.
Held: A small authority ill able to afford litigation was awarded
costs against the legally-aided applicant
Pinochet, Re Augusto
[Legal aid – exceptional case – high cost]
Taxpayers funded the lion's share of a bill estimated at about £5 million
run up by General Pinochet in his battle against extradition to Spain.
Costs include the abortive law lords' hearing that had to be set aside
after it emerged that Lord Hoffmann, the law lord, had failed to disclose
his links with Amnesty International.
In two of the hearings General Pinochet's costs were paid from public
funds. the Crown Prosecution Service had to pay its own costs.
The proceedings that led to the result of the first appeal being set aside
would be assessed on an "indemnity basis" - which will mean that the
general's lawyers will be able to recover almost every item for which they
The general's British lawyers were being paid by the Chile-based Pinochet
Foundation, which has been raising funds for the legal battle.
RSA Pursuit Test Cases  High Court Costs Office
[Funding of legal services – reasonable cost of After
The Event policy recoverable]
D provided an after the event (ATE) insurance policy
known as “Pursuit” to claimants.
D argued that the policy was enforceable, and the
Access to Justice Act 1999 was engaged.
The court considered, whether it was unlawful on the
grounds of champerty;
the cost of the policy; and whether the premium was in breach of the
Held: Although the calculation of the cost of
the insurance in the instance case was flawed, there had been no breach of
the indemnity principle nor was the policy unlawful on the ground of
There was no reason why the premium should not be
based on the claimant’s actual costs, but where a cheaper policy had been
available, the claimant had to justify why they had selected a more
Roache v News Group
[Legal Aid - example of costs – solicitors entitled to their fees]
C an actor (Ken Barlow Coronation Street) sued for libellous comments in
The Sun (that he was boring), the costs were about £120,000.
Smith v Houston
[Legal Aid – costs of civil actions]
D a female doctor falsely accused C of sexual harassment in front of other
colleagues and patients. C won his case for slander. D was ordered to pay
damages and costs of £300,000.
D declared herself bankrupt having only £8,000 left for C and other
creditors. C's solicitors then sued C for the balance of their fees, and
obtained judgement against him.
C’s solicitors won.
Masquerade Music (1998)
[Legal Aid – cost of proceedings]
D breached C’s copyright costs of £½ million on C's side alone.
Swainston v Fox
[Legal Aid – costs of actions]
A dispute over noise, rubbish and dogs resulted in an award of £4000
in damages but costs of £25,000 on each side.
Tawil v Cheema
[Legal Aid – costs of actions]
C injured in a fight was awarded £750 in damages and approximately £2,000
Thai Trading v Taylor
[Legal Aid – lawfulness of CFA’s]
C supplied a carved bed. D paid the deposit but no more, claiming the bed
was unsatisfactory. C sued for the balance due. D counterclaimed for the
return of her deposit. D was represented by a solicitor - her husband - on
a "no win no fee" basis, and won. C appealed against the order for costs.
Held: Affirming the order, and distinguishing
Wallersteiner v Moir there can be no objection to an arrangement whereby a solicitor agrees to
forego his costs if he loses, as long as he does not seek to recover more
than his ordinary profit costs and disbursements if he wins.
Wallersteiner v Moir
(No.2)  CA
[Legal Aid pre-statutory position of CFA’s]
D defend a complex case for over 10 years. C had been refused legal aid
because he stood to gain very little from the action, and had little
He sought s contingency fee arrangement with his lawyers.
Held; an arrangement whereby the lawyer is paid more for winning
than for losing, is illegal as contrary to public policy. C's problems
could be met by giving him an indemnity against the company for any costs
not ultimately met by D.
Woolls v Powling
[Legal Aid – example of costs]
Two neighbours disputed ownership of a strip of land worth about £200,
their combined costs were estimated at over £100.000.