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Litigants In Person, Direct Access & Binding Authority

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Ashford Borough Council & Mrs. Tracy Kerly v Mr. Fergus Wilson [2022] EWHC 988 (QB)

Judgment has been handed down on the costs issues arising from the substantive proceedings whereby the Claimants obtained a final injunction restraining the Defendant from harassing the Claimants and those they represented.  The Claimants succeeded on all issues.

The Claimants had engaged the services of a Lead and a Junior Barrister whereas the Defendant, acting as a litigant in person, had instructed a Barrister under a direct access scheme.

The draft judgment had been circulated to all Counsel after the substantive proceedings had concluded and the direct access Barrister instructed by the Defendant confirmed that the draft order in relation to the costs issues were agreed.  Those costs issues were inclusive of the costs of the various interlocutory hearings; in the first instance awarded on the standard basis and then on the indemnity basis thereafter as the Claimants had obtained a Judgment that was equal or more advantageous to the terms of the Part 36 Offer in writing on the 4th September 2020.

After confirmation of the draft order, the Defendant’s direct access instructed Barrister contacted the Court to inform him that the Defendant had withdrawn his instruction and did not agree the order in respect of costs.

The Defendant subsequently informed the Court that he would contest the order in its entirety and that at the time that the direct access Barrister had confirmed the order, he had been acting without authority; the Barrister having left his Chambers and taken up an employed position in the advocacy team with a large, well-known firm of Solicitors.

The issues before the Court were:

a) Whether a costs order had been agreed;

b) If so, were the parties in particular bound by it;

c) If not, what order for costs should be made.

Had a costs Order been agreed?

Darryl Alen QC, sitting as a Deputy Judge of the High Court found the simple answer to be yes.  Counsel for both sides had agreed a proposed Order for costs, it was emailed to the Court to be sealed and issued.  The real issue is whether or not the Defendant was bound by that agreement.

Are the Parties, in particular the Defendants, bound by the terms of the agreed Order?

The Defendant had provided written submissions but none of them addressed this issue at paragraphs 19 to 22 the Judge held:

“The Defendant equates [his Barrister] leaving his Chambers to take up a position as an employed Barrister to terminate his direct access instructions.  That does not follow.  There is no evidence that the direct access agreements provided that the instructions would be terminated in the event that [his Barrister] left his Chambers.  There is also no evidence that the Defendants terminated the instructions.  There is certainly no evidence that [his Barrister] considers his instructions to have been terminated.  Indeed, his participation in agreeing a list of typographical corrections and the draft Orders demonstrates that he considered himself still instructed to represent the Defendant.

A brief to represent a client at a hearing includes receiving the Judgment and drafting/agreeing any Orders that flow from it [the direct access Barrister’s] instructions/retainer extended to considering the Judgment and agreeing the Orders that flowed from it in this case.  I have no doubt that the Defendant would have been the first to complain that his Barrister had ignored the Court’s requests for an agreed list of corrections and agreed Orders.

Importantly, there is no suggestion or evidence that the Defendant notified the Claimants that his Barrister was no longer instructed, prior to sending his letter of 20th September 2021.  Insofar as the Claimants were concerned, the Barrister was still instructed to represent the Defendants: all of his actions dealing with the Judgment and the list of corrections, and discussing the draft Orders were entirely consistent with that being the case; his email correspondence with me was also entirely consistent with that.  There was no reason whatsoever for the Claimant or their Counsel to suspect or question whether [the Defendant’s Barrister] was authorised to act on behalf of the Defendant.

There is no evidence that the Defendant instructed his Barrister not to enter into such discussions or any agreement regarding the costs issues or that his authority was limited in any way.”

The Court also noted the four submissions of the Claimant, which followed the general rule, but noted a specific general exception.  Those submissions were:

d) It is well established that the Counsel had a broad general authority to enter into agreements on behalf of their client.

e) That, in such instances Counsel is presumed to have authority without limitation (within the scope of the litigation);

f) Counsel may do anything which they consider is in the best interests of their clients, even if they lack specific instructions so long as it is directly related to the dispute before the Court;

g) If Counsel enters into an agreement under the auspices of his apparent authority then his client is bound by that agreement.

Judgment referred to the case of Shepherd v Robbins [1919] 1 KB 474 to elucidate the exception to the general rule, reciting Banks LJ at 477-478 of that Judgment,

“But there is a second different line of cases which decide that before a Consent Order has been drawn up and perfected, the consent given by Counsel or Solicitor may be withdrawn by the client if the Counsel or Solicitor gave it under a misapprehension.  In such cases, the Court will not proceed further with the drawing up and perfecting of the Order, and will not lend its authority to compel observance of an agreement arrived at through a mistake.”

He confirmed this position through a citation of Chitty on Contracts,

“If the Consent of…if the consent was given under a misapprehension then it may be withdrawn before the Consent Order is drawn up.”

Costs Award

The Court held that the CPR 36.17 consequences apply allowing costs on an indemnity basis from the end of the relevant period, and interest on those costs awarded at 10%.  .

The pertinent behaviour of this litigant in person included:-

h) The Defendant issuing two applications which had been deemed to be without merit;

i) The Defendant having made no proposals to resolve the proceedings in order to avoid the cost of a trial;

j) That the Defendant’s conduct in the proceedings had already resulted in two orders for indemnity costs against him;

k) The Defendant had failed to pay the cost of a previous interlocutory hearing which was ordered against him.

The Judge found that:

l) The proceedings against the Defendant were not motivated by spite or vexatious, there were perfectly proper proceedings designed and intended solely to protect the welfare of the First Claimant’s current and former officers, employees and agents.

m) Had the Claimant not issued the proceedings, they could have been vulnerable to criticism or complaint for failing to take necessary action;

n) The Claimant had delayed in issuing proceedings, inviting the Defendant to desist from his behaviour; the proceedings were issued as a last resort.

o) It was a significant step for a public body, particularly a local council, to seek an injunction restraining the behaviour of one of its residents and therefore it was appropriate to issue proceedings in the High Court and to instruct Leading Counsel.  In any event, such factors went to the level of costs and not the incidents of costs.

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