Andrew Myers on fighting for costs in legally-aided actions.

Andrew Myers is a solicitor advocate at Travers Smith Braithwaite and recently obtained an order nisi from the Court of Appeal that the LAB pay his client's costs.

IT is well-known that a successful litigant is usually unable to obtain an enforceable costs order against a legally-aided opponent.

Under section 17 of the Legal Aid Act 1988, the opponent's liability is limited to the amount it is reasonable for him to pay. If the aided party makes a nil contribution, the amount the court considers reasonable to pay is often also nil.

But a successful opponent to a legally-aided litigant could consider asking the court to order the Legal Aid Board (LAB) to pay costs under section 18 of the act.

At first instance, only unassisted parties who are defendants and would suffer severe financial hardship can seek such an order.

On appeal, however, these requirements do not exist. Even an appeal from a master to a judge in chambers resulting in a final judgment counts as an appeal.

This is because the judge in that context is performing an appellate function, as in the case of Megarity v DJ Ryan Limited (No 2).

Even substantial bodies can apply for such an order – in Stretch v West Dorset District Council (No 2) the Court of Appeal made an order in favour of a local authority.

Orders have also been made in favour of building societies, Saunders v Anglia Building Society (No. 2).

Under usual principles, a costs order would be made in favour of the unassisted party, on an appeal that party has only to satisfy the court that it is just and equitable in all the circumstances that its costs should be paid out of public funds.

A factor is that the unassisted litigant has succeeded on the appeal.

Other factors include the means of the unassisted party, whether it was the assisted party which caused the costs of the appeal, the conduct of parties and whether the appeal involved determining important questions of law.

It is worth noting guidance given by Lord Denning in the 1972 case of Clifford v Walker: "I hope the profession will realise that in the Court of Appeal, we can and will do whatever is just and equitable so as to enable unassisted persons who win against legally-aided persons to get their costs out of the legal aid fund."

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