England and Wales Land Registry Adjudicator

 

 

REF/2008/0551 & REF/2009/0783

 

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

Charles Thomas Weeks and Robert James Weeks

 

APPLICANTS

 

and

 

Andreas Neophitou and Jacqueline Susan Neophitou

 

RESPONDENTS

 

 

Property Address: Lashenden Cottage, Headcorn Road, Biddenden, Ashford, Kent, TN27 8JZ

Title Number: K726821

 

 

DECISION ON THE APPLICATIONS FOR PERMISSION TO APPEAL AND COSTS

 

KEYWORDS: Litigants in person – entitlement to costs and expenses; Litigants in Person (Costs and Expenses) Act 1975, s 1(1), (2); Civil Procedure Rules: CPR 2.3(3), 48.6(1) - (5); Tribunals, Courts and Enforcement Act 2007, sch. 8, para. 6; Value Added Tax Act 1983; Value Added Tax Tribunals Rules 1986, r. 29; RSC Ord. 62, rr. 2, 18(1), 35; Arbitration Act 1950, s.18(2); Solicitors Act 1974, ss. 20, 25(1); Civil Procedure Act 1997; Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003: rr. 3, 35, 42, 43, 50, 60; Land Registration Act 2002, s. 109(3)(d); Courts and Legal Services Act 1990. ss. 27, 119(1).

 

Cases referred to: Buckland v Watts [1970] 1QB 27; Customs and Excise Commissioners v Ross [1990] 2 All ER 65; Piper Double Glazing Ltd v DC Contracts [1994] 1 WLR 777; Agassi v Robinson (Inspector of Taxes (No. 2) [2006] 1 WLR 2126; Fosberry v HM Revenue and Customs [2006] EWHC 90061 (Costs).

 

THE BACKGROUND

1.                  On 24^th February 2010 I handed down a written Decision in the above case. This followed a hearing which took place on 25^th January 2010 at Victory House at which the Respondents appeared in person and the Applicants were represented by a lay representative, Mr M Phippen. Prior to that the Applicants had engaged the services of Mr Julian Stratford, a Chartered Surveyor, who throughout the period until the hearing had acted in the role of a non-legal lay representative on behalf of the Applicants. I should state that my Decision refers to Mr Stratford appearing on behalf of the Applicants at the hearing which is incorrect.

 

2.                  The Applicants are the registered proprietors of land and premises known as Lashenden Farm, Biddenden, Kent, registered under title number K923721. They made two Applications to HM Land Registry. In the First Application the Applicants applied for alteration of the Register of Title Number K726821 of which the Respondents are the registered proprietors. The land and premises comprised in that title are known as Lashenden Cottage which on one side adjoins Lashenden Farm. The basis of this Application was that the Applicants hold the documentary title to a parcel of land forming part of Title Number K726821 which I referred to in my Decision as the Red Land. In any event it was claimed that the Applicants were in possession of the Red Land as were their predecessors in title for many decades. The Second Application was a claim for adverse possession of the Red Land being an alternative ground that could also be advanced by the Applicants in addition to their claim based upon documentary title.

 

3.                  The issue, therefore, which arose for determination was directed to the question as to which party could justifiably claim to hold the paper title and also claim to be in physical possession/occupation of the Red Land.

 

4.                  After hearing the evidence and conducting an examination of the documentary title I came to the conclusion (although it was not entirely free from doubt) that the Applicants were and are the true current paper title owners of the Red Land for the reasons expressed in paragraphs 50 to 55 of my Decision. I also found on the alternative ground that if I was incorrect in that analysis, then I found as a fact that the Applicants and their predecessors in title had used and occupied the Red Land since probably the late 1940s, if not earlier. Accordingly, I rejected the Respondents’ claim that they also had been in occupation of the Red Land, and I found that the Applicants in any event had barred the unregistered paper title of the predecessors in title of the Respondents in the 1940s.

 

5.                  In such circumstances I accordingly found in favour of the Applicants insofar as the First Application was concerned, and I ordered that the Chief Land Registrar should give effect to the First Application dated 20^th November 2007 and to cancel the Second Application dated 20^th April 2009.

 

6.                  In paragraph 61 I then went on to refer to the question of costs. I stated that (as was usual in such cases) costs should follow the event and that in principle the Applicants should be awarded their costs on a standard basis. As I said in my judgment the real issue in the case was whether the Applicants or the Respondents used and occupied the Red Land and whether the Applicants had an overriding interest as at the date of first registration in May 1993 based on the alternative ground of adverse possession. I further stated that I considered that there was some doubt whether the Applicants should be awarded their costs of their First Application for alteration in the light of the fact that the essence of the case related to use and occupation and the question of any overriding interest in favour of the Applicants. I also stated that it was most unfortunate that the Respondents had been led to believe that they were the true owners of the Red Land by virtue of what may have been a mistake made by the Tunbridge Wells Office of HM Land Registry.

 

COSTS ISSUE

7.                  In relation to the question of costs the parties have sent me a number of documents in support of their respective cases. I refer to letters dated 15^th December 2009 and 15^th March 2010 from Messrs Stratfords on behalf of the Applicants, and to letters dated 16^th January 2009, 24^th January 2009 and 18^th April 2010 from the Respondents. Insofar as the Applicants’ costs are concerned I have been asked to make a summary assessment and to this end in their letter dated 15^th December 2009 the sum of £14,530 was sought in relation to both Applications. Following the hearing and the subsequent Decision the level of costs sought on a summary assessment has increased to £16,831.46. Insofar as the Respondents are concerned prior to the hearing they sought their costs totalling £2,637.81 which included invoices from two different firms of solicitors, namely Messrs Girlings and Messrs Brachers. The Respondents have also challenged the quantum of costs sought by the Applicants as being disproportionate to the value of the land in dispute. It is also suggested by the Respondents that the Applicants’ representative was negligent in his conduct causing extra expense.

 

Decision on costs – the principle

8.                  I have taken into account all the submissions made by both sides with regard to the questions of costs and I come to the following conclusions – I consider that as a matter of principle the Applicants are entitled to their costs of and occasioned by the two Applications. It is clear, in my judgment, that the Respondents were aware from an early stage that the Red Land formed part of their documentary title but that from any inspection it was not physically included in the land comprising Lashenden Cottage – it being fenced off and physically included within the Applicants’ land. Also the physical characteristics of the Red Land (as I have found) lend considerable weight to my findings of fact in the Decision whereby the northern side of the Pond is a steep and somewhat dangerous bank where it abuts the fence line of the Red Land which makes access to the red land from Lashenden Cottage nigh on impossible. Whereas at the southern (unfenced) side of the Pond there is a gentle slope which allows access for cattle and sheep to use it for watering purposes, which indeed has occurred. In this regard I refer to my findings of fact set out in paragraph 46 of my Decision, and in particular to sub-paragraph (9).

 

9.                  Thus, in my judgment, had proper enquiry been made prior to or at the time of purchase of Lashenden Cottage upon which a prudent purchaser should have made either directly or through his or her solicitors, then the mistake which had arisen at the date of first registration in May 1993 would have been discovered. Instead, the Respondents knowing that the Applicants claimed documentary title to the Red Land chose to contend that it was their land despite having been advised that the Applicants were asserting that they were in factual possession of it and sought to argue that by reason of the fact that it had been physically included within their title it was accordingly their property. Subsequently the Respondents failed to concede the Applicants’ position and objected to both Applications which led eventually to the hearing and the subsequent success of the Applicants’ case.

 

10.              In such circumstances I therefore order that the Respondents do pay the Applicants’ costs of and occasioned by the two Applications. In this regard I should state that although I have directed that the Chief Land Registrar should cancel the Second Application, this was for a procedural reason in that the Second Application was alternative to the First Application. It would not be possible to direct the Chief Land Registrar to give effect to both. The issues before me at the hearing, however, involved consideration of factual and documentary evidence which straddled both Applications.

 

The Applicants as litigants in person – their entitlement to costs

11.              In this regard I should mention that throughout the Applicants have been litigants in person using the resources of Messrs Stratfords to assist them in the promotion of their case. At the hearing they engaged the services of a lay representative in respect of which no financial claim is apparently being made. In such circumstances as litigants in person they are only entitled to out of pocket expenses and reasonable disbursements. The question therefore arises for consideration as to whether the professional (but not legal) fees incurred by Messrs Stratfords on behalf of the Applicants as litigants in person can be justified as part of the costs sought by the Applicants against the Respondents.

 

12.              In analysing the question of the entitlement of the Applicants as litigants in person to their costs an exercise should be undertaken to examine how the question of costs of litigants in person have been treated historically in various jurisdictions, particularly as to the distinctions between costs and disbursements, and between the costs of legal and non-legal representatives.

 

The historical position at common law

13.              In the case of Buckland v Watts [1970] 1QB 27 it was held that although a solicitor who conducts his own case successfully can claim costs for his professional services reasonably incurred, a lay litigant appearing in person is not entitled to remuneration for the expenditure of time and labour in the preparation of his case as he does not possess professional legal skill. At page 37G-H of the decision Sir Gordon Wilmer made the following observations, which perhaps in today’s climate would be considered to be a somewhat narrow interpretation :-

 

“The other aspect of the plaintiff’s appeal raises undoubtedly a most interesting question, namely, that whereby he seeks to recover in respect of his own expenditure of time and labour in preparing his case. What a successful party, who has got an order for costs, is entitled to recover falls, as is well known, under two headings. One heading covers his disbursements, that is to say money which he has actually had to pay out to other people, such as witnesses, counsel, professional advisors, and so forth. The other heading is described as “costs”. That is intended to cover remuneration for the exercise of professional legal skill…It is because there has been an exercise of professional legal skill that a solicitor conducting his own case successfully is treated differently from any other successful litigant conducting his own case in person. We are not concerned with the exercise of other professional skills. Other professional people, who become involved in litigation and conduct their own case, may recover something in respect of their own professional skill, insofar as they qualify as witnesses and are called as such. But nobody else, except a solicitor, has ever been held entitled to make any charge, as I understand it, in respect of the exercise of legal skill; and it is that which the plaintiff has sought to do in the present case. I have much sympathy for him, as indeed Donaldson J, did, but I can find no ground either in principle or on authority, for allowing him anything by way of remuneration for the exercise of a professional skill which he has not got. In those circumstances I agree that the appeals must be dismissed.”

Litigants in Person (Costs and Expenses) Act 1975

14.              The common law position, as set out above, was ameliorated by the enactment of the Litigants in Person (Costs and Expenses) Act 1975 (“the 1975 Act”). This extended the ability of a litigant person to recover costs. Unfortunately, as a matter of principle, the provisions of the 1975 Act do not apply to this jurisdiction. That statute enables litigants in person to claim costs and provides the statutory basis underlying the provisions later incorporated into the Civil Procedure Rules (“the CPR”) for awarding costs for litigants in person in the High Court and the county courts. The provisions of this statute did not extend to tribunals in general and its provisions have had to be specifically incorporated by statutory instrument to enable the tribunal in question to benefit (see section 1(1)(c)). Hitherto apart from the High Court and the county courts it was only the Lands Tribunal and the Employment Appeals Tribunal which had been specifically included within its remit. That position has now been ameliorated by the enactment of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) in that those tribunals whose functions have been transferred into the structure of the new unified tribunals system can now order the costs of a litigant in person to be paid by any other party to the proceedings or in any other way, there may, subject to rules of court, be allowed on taxation or other determination of those costs sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates (see paragraph 6 and in particular 6.2 of schedule 8 to the 2007 Act amending section 1(1) and (2) of the 1975 Act). The position, however, insofar as this jurisdiction is concerned is that unless and until its functions are transferred into the new structure the provisions of the 1975 Act continue to be inapplicable.

 

The position pre CPR

Customs and Excise Commissioners v Ross

15.              In the case of Customs and Excise Commissioners v Ross [1990] 2 All ER 65 Simon Brown J considered the question whether the Manchester Value Added Tax Tribunal had power to include within an award of costs any sum in respect of the costs of a party representing himself, apart from his out-of-pocket expenses. The procedural rule of application in that case was Rule 29 of the Value Added Tax Tribunals Rules 1986 made pursuant to the Value Added Tax Act 1983 which provided the power to make rules “for the award and recovery of costs”. There was no definition contained in that Act of the word “costs”.

 

16.              The issue which concerned Simon Brown J was whether the incorporation in the Value Added Tax Tribunal Rules 1986 of the then extant provisions of RSC Order 62 enlarged the Value Added Tax Tribunals’ jurisdiction to award costs so as to permit costs under the 1975 Act, which otherwise did not apply. The learned judge came to the following conclusion:-

 

“That approach [that construing the reference to the RSC Order 62 enabled the costs regime under the 1975 Act to be of application] in my judgment was not open to the Tribunal. I have no doubt at all that under Rule 29 the power of tribunals to award costs is confined to sums which are recoverable at common law. That power was wholly unaffected by the 1975 Act and that position in turn remains wholly unaffected by the reference in Rule 29(2) to Order 62.”

 

Thus, it was held that the power of tribunals to award costs was confined to sums which would be recoverable at common law and was wholly unaffected by the provisions contained in the Value Added Tax Act 1983 and rules made thereunder.

 

Piper Double Glazing Ltd v DC Contracts

17.              In Piper Double Glazing Ltd v DC Contracts [1994] 1 WLR 777 Potter J, sitting with assessors, heard a case concerning the costs of an arbitration which had been referred under the provisions of the Arbitration Act 1950. The supplier sub- contracted to the claimant, Piper Double Glazing Limited, for the supply and fixing of windows and other fittings for a council housing estate. Disputes relating to the termination of the sub-contracts were then referred to arbitration under the provisions of the Arbitration Act 1950. From an early stage and at least three years prior to the conclusion of the arbitration and the final award being made in July 1990, the claimant was represented by claims consultants. He was successful in the arbitration and was awarded costs to be taxed by a taxing master of the Supreme Court. On the taxation the Master rejected the supplier’s contention that, by reason of section 25(1) of the Solicitors Act 1974 and under RSC Order 62, there was no authority for the taxation of the fees of a person who was neither a barrister nor a solicitor, nor a litigant in person, and allowed the costs of the claims consultant. The supplier applied under RSC Order 62, Rule 35, for a review of the taxation and Potter J heard two preliminary issues, namely, (1) whether there was a power to allow costs incurred by an unqualified person in relation to the arbitration, and (2) the basis for the assessment of such costs.

 

18.              In this case the claims consultants held themselves out as offering a complete range of professional services, inter alia, the constructions industry including claims appraisal and resolution of disputes up to and including their resolution by arbitration. To this end they employed a multi-disciplinary staff qualified in various specialities which included qualified surveyors, non-practising barristers and arbitrators, some of whom had dual qualifications. Any or all of these could exercise their various roles and functions in the course of providing arbitration services including the giving of legal advice, settling pleadings, the provision of expert testimony and advocacy services at interlocutory and substantive hearings before arbitrators – all as part of the package provided. The various services provided were rendered through and under the umbrella of their employer, the claims consultants, and their range of services was rendered without any express division of function of the kind encountered by a client who separately employs a solicitor, barrister and expert witness.

 

19.              The head note of this case is in the following terms:-

 

“held, that it was the intention of section 18(2) of the Arbitration Act 1950 to permit the taxation in the High Court of any costs ordered to be paid by an arbitrator’s award, including the costs of non-qualified representatives, the taxing master being the delegate of the arbitrator; that, in providing that in relation to such a taxation Order 62 should “have effect with such modifications as may be necessary,” Ord. 62, r.2(2) was therefore to be construed as enabling full effect to be given to an arbitrator’s costs order by allowing recovery of the reasonable costs of such representatives reasonably incurred; that the claims consultants had not acted as solicitors within the meaning of section 25(1) of the Solicitors Act 1974, which related to the doing of acts which only a solicitor might perform or by a person pretending or holding himself out to be a solicitor, but rather had acted at all times properly as claims consultants notwithstanding that much of their work was of the type commonly done by solicitors; and that, accordingly, the High Court had power to tax costs incurred by an unqualified person in relation to the conducting of an arbitration.” [my emphasis]

 

20.              Of considerable importance is that Potter J at 785B of his judgment rejected a narrow construction of the provisions contained in RSC Order 62, Rule 2(2), as contended for by Counsel for the supplier, on the basis that to award costs in respect of the claims consultants would be in breach of section 25(1) of the Solicitors Act 1974 which provides that no costs in respect of anything done by an unqualified person acting as a solicitor shall be recoverable by him or any other person in any action, suit or matter. In his decision Potter J stated that:-

 

“So far as Ord 62, r. 2(2) is concerned, I see no reason to place the narrow construction for which [Counsel for the supplier] contends on the words ‘with such modifications as may be necessary’. In my opinion, to adopt such a construction would be to negate in an important respect and in an unjust manner the intention of section 18(2) of [the Arbitration Act 1950] that any costs directed to be paid by the award of an arbitrator should taxable in the High Court. … Given the freedom of any party to an arbitration to employ a lay or non-qualified representative to conduct his case, given the power of the arbitrator to make an order in respect of the costs of such a representative, and given that the taxing master, in effecting the taxation, is the delegate of the arbitrator in that task, it seems to me that there are no compelling reasons for adopting the construction contended for by [Counsel for the supplier]. Indeed quite to the reverse.”

 

21.              Further, at page 785G-H the learned Judge also indicated that whilst the code contained in Order 62 is primarily a code for the taxation of costs in the High Court, Order 62, Rule 2 –

“…plainly comprehends the process of taxation applying to quite other proceedings, whether before an arbitrator, a tribunal or other body constituted by or under any act in relation to which the rights of audience and rules of procedure may be substantially different from High Court proceedings. … After all, in principle it is the purpose of a costs order to effect reimbursement to the successful party of all costs properly incurred in the proceedings.” [my emphasis]

 

22.              Potter J at page 786 of his judgment then considered and rejected the submission that so to hold would be in breach of the Solicitors Act 1974 on the basis that whilst it appeared to be the position that acts done by representatives of the claims consultants were acts by “unqualified persons” so far as the Solicitors Act 1974 was concerned,

 

“it does not appear to me that they were “anything done by… [such persons]… acting as a solicitor”… so far as I am aware, the claims consultants have not at any stage held themselves out as solicitors, but have at all times acted specifically as “claims consultants” in relation to their representation of the claimant.” (See paragraphs C and D).

 

23.              Further, at page 787 of his judgment Potter J went on to provide guidance to the approach to be adopted in taxing the costs of a claims consultant when considering a “new and/or unconventional breed of litigators”. In such circumstances it may be that the taxing master would consider that some difference of approach would be called for, not least to accommodate the extent to which, in relation to various items of work, it might be the case that the fee earner concerned had acted in a multi-disciplinary capacity. It might be, at least in theory, that in performing a particular task the fee earner had in effect done two jobs at the same time and saved money for the client. On that basis it might again at least in theory be that the taxing master would consider it appropriate to allow a charging rate for the single fee earner higher than the rate which might have been allowed in respect of two individual fee earners jointly rendering the same service (see paragraphs B to E). He stated that plainly Order 62 Rule 18(1) envisaged that a litigant in person could not recover what it would have cost if the services of a solicitor had been employed; Rule 18(2) limits the amount allowed in respect of any item (save for any disbursement) to two thirds of a solicitor’s proper charge being a rule-of-thumb measure aimed at deducting the profit element in the solicitor’s bill.

 

The CPR

24.              The CPR originate in 1998 and are rules of court made under the Civil Procedure Act 1997. They have been described as a new procedural code which supplanted the Rules of the Supreme Court and the County Court Rules. In so far as costs are concerned the CPR provides that where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person, it is provided that the costs allowed must not exceed, except in the case of a disbursement, two thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative. The litigant in person must be allowed:-

 

(1)               Costs for the same categories of work and disbursements which would have been allowed if the work had been done or the disbursements had been made by a legal representative on behalf of the litigant in person;

(2)               The payments reasonably made by him for legal services relating to the conduct of the proceedings; and

(3)               The costs of obtaining expert assistance in assessing the costs claim. (See CPR 48.6(1) - (3)).

 

25.              Subject to the two-thirds limitation referred to above, the amount of costs to be allowed to the litigant in person for any item of work claimed is -

 

(1)               Where the litigant can prove financial loss being the amount that he can prove he has lost for the time reasonably spent on doing the work; or

(2)               Where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Costs Practice Direction (see CPR48.6(4)). A litigant who is allowed costs for attending at court to conduct his case is not entitled to a witness allowance in respect of such attendance in addition to those costs (see CPR48.6(5)).

 

26.              For the purposes of the CPR the reference to the “court” means a reference to a particular county court, a district registry, or the Royal Courts of Justice (see CPR2.3(3)). This means that the CPR does not apply to the jurisdiction of the Adjudicator to HM Land Registry. As a matter of practice and in order to supplement perceived lacunae in the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003, and the Adjudicator to HM Land Registry (Practice and Procedure) (Amendment) Rules 2008, (“the Practice and Procedure Rules”) the Adjudicator will seek guidance from the CPR in appropriate circumstances.

 

Case law post CPR

27.              In the case of Agassi v Robinson (Inspector of Taxes (No. 2)) [2006] 1 WLR 2126 a number of findings were made on the issue as to whether or not fees incurred by Tenon Media, being a professional organisation providing specialist tax advice to Mr Agassi, the professional tennis player, were allowable. Following his success in the appeal proceedings against HM Inspector of Taxes Mr Agassi applied for the costs referable to Tenon Media’s assistance to be paid. They were not solicitors but they had instructed a barrister on direct access through the Bar’s Licensed Access Scheme to act on Mr Agassi’s behalf.

 

28.              Even assuming the services performed by Tenon Media as tax advisers were provided lawfully (and that formed another part of the judgments of the Court of Appeal) it was held that Mr Agassi, as a litigant in person within the meaning of CPR 48.6, was only entitled to recover under these provisions those categories of disbursements, such as Counsel’s fees or the costs of an expert witness, which would normally have been made by a legal representative on his behalf. If the expenditure was for work which a legal representative would normally have done himself, or which he could have delegated to a third party such as an agent, it was not a “disbursement” within the language of Rule 48.6(3)(a)(ii). Therefore, Mr Agassi was not entitled to recover costs as a disbursement in respect of work done by tax advisers which would normally have been done by a solicitor instructed to conduct the appeal, although some of the work might nevertheless be categorised as specialist or expert advice and allowable as a disbursement. As Dyson LJ stated:-

 

“We are in no doubt that we should apply the meaning of “act as a solicitor” which is propounded in the Piper Double Glazing case…. and approved in the Factortame (No 8) case [2003] QB 381. Mr Carr submits that the Piper Double Glazing case is of little relevance because it concerned an arbitration in which parties were free to employ lay representatives and in respect of which the Rules of the Supreme Court on costs had effect “with such modifications as may be necessary”: RSC Ord 62, r 2(2). We do not agree. The meaning of “act as a solicitor” cannot vary according to whether the context is litigation or arbitration. The test articulated by Potter J is of general application. He rejected the submission that allowing the claims consultants their costs would amount to a breach of section 20(1) of the 1974 Act. He did not identify the acts which only a solicitor may do, although he was clearly of the view that there is no aspect of the conduct of an arbitration which only a solicitor may do. This was a reflection of the submission by the claimants that there are no statutory or other restrictions on the right of a party to be represented in an arbitration by the advocate of his choice, whether qualified or not. [41]

 

Potter J’s test was implicitly approved by this court in the Factortame (No 8) case in the context of litigation. We are satisfied that we should treat this clear and authoritative statement as superseding the sometimes conflicting statements in the old authorities. We acknowledge that the application of that test is likely to be different in litigation from its application in arbitration. For example, it would seem that section 22 has no application to arbitrations. The prohibition on unauthorised litigators exercising the right to conduct litigation within the meaning of the 1990 Act will have no application to arbitrations. But in the absence of express prohibitions on unqualified persons which are peculiar to litigation, it is difficult to see any basis for holding that, simply by reason of the status, duties and roles of solicitors, unqualified persons are subject to restrictions in relation to litigation to which they are not subject in relation to arbitration. It is clear from the Piper Double Glazing case [1994] 1 WLR 777 that an unqualified person does not act as a solicitor if he conducts an arbitration (unless he pretends to be a solicitor). This is because there is no rule that only solicitors may conduct arbitrations. [42]”

 

29.              Lord Justice Dyson later in his judgment went on to state that:-

 

“Notwithstanding the new CPR regime, made under the Civil Procedure Act 1997, it seems to us that the 1975 Act continues to provide the legal foundation for CPR48.6. Accordingly, “litigant in person” is to be read in the same sense as in that Act. Since Mr Agassi’s right to conduct litigation was derived solely from that provision, his right to recover costs from the opposing party must be found in CPR48.6. [63]”

“….In our judgment, the costs recoverable by a litigant in person are determined in accordance with CPR r 48.6. There is no room for applying different principles to a litigant in person by reference to other rules. [64]

 

Fosberry v HM Revenue and Customs

30.              In the more recent case of Fosberry v HM Revenue and Customs [2006] EWHC 90061 (Costs) in this case non-legal lay advisers who described themselves as “Chartered Tax Advisers and Accountants” acted as lay representatives on behalf of Mr and Mrs Fosberry. Master Wright Costs Judge held that they were entitled to their costs on the basis that the firm had both a right of audience and a right to conduct litigation before the VAT Tribunal and that the provisions of section 20 of the Solicitors Act 1974 (an unqualified person not to act as a solicitor) did not apply. In other words Master Wright found that a non-lawyer had a statutory right of audience and a right to conduct litigation before a VAT Tribunal, and that his charges were recoverable under a costs order.

 

The costs regime before the Adjudicator and the position of lay representatives

Costs

31.              The starting point for the consideration of the question of the payment of costs by the unsuccessful party is contained in section 109(3)(d) of the Land Registration Act 2002. This contains the rule-making provision, inter alia, concerning the payment of costs of a party to proceedings by another party to the proceedings. The rules made pursuant to that section are contained in the Practice and Procedure Rules.

 

32.              The award of costs by the Adjudicator is governed by the provisions of Rules 42 and 43 of the Practice and Procedure Rules. The basis of the award of costs is to be seen in Rule 42 and its thirteen sub-rules. It is to be noted that there is no attempt to set out the detailed provisions on costs as contained in Rules 43 to 48 of the CPR although, as I have already stated above as part of the overriding objective this jurisdiction is entitled to and does have regard to the CPR for guidance on best practice. Rule 43 specifically deals with costs thrown away resulting from any neglect or delay of the legal representative during the course of the proceedings which, in effect, renders the legal representative personally liable for such costs. It is be further noted that there is no restriction contained in the Practice and Procedure Rules as to the identity of the receiving party in whose favour such an award can be made against the paying party.

 

Lay representatives

33.              It is also necessary to have regard to other rules contained in the Practice and Procedure Rules relating to non-legal representatives and the relevance of such rules to the payment of costs. I refer to Rule 35(1) which provides as follows:-

 

“At the hearing a party may conduct his case himself or, subject to paragraph (2) be represented or assisted by any person, whether or not legally qualified.” [my emphasis]

 

34.              In the case where a party has engaged a legal representative (meaning the legally qualified representative of a party) during the proceedings Rule 43 specifically provides for the payment of costs of the proceedings thrown away by the legal representative where a party has unnecessarily incurred costs as a result of his neglect or delay, and it is just in all the circumstances for the legal representative to compensate the party who has incurred or paid the costs thrown away. This therefore provides the additional aspect that in such circumstances the legal representative can be made personally responsible for such costs. It is also to be noted that the costs thrown away relate to “the proceedings” and not to any costs incurred prior thereto. “Proceedings” are defined in Rule 2 as being “the proceedings of the matter before the Adjudicator but does not include any negotiations, communications or proceedings that occurred prior to the reference or rectification application.”

 

35.              The distinction, therefore, should be noted that in Rule 35 the reference is made to rights of audience i.e. representation at the hearing by a representative whether legally qualified or not, whereas Rule 43 refers to the costs thrown away relating to the proceedings i.e. the conduct of litigation by a legal representative. Thus, the concept of a “representative” is wider than the concept of a “legal representative”, and “proceedings” includes the “hearing”.

 

36.              I also refer to Rules 50 and 60 of the Practice and Procedure Rules. Rule 50 is concerned with the question of service of documents and envisages the service of documents upon the party or the party’s representative “…who has been appointed as his representative for the purposes of the proceedings. Rule 60 refers to the position where a party who was previously unrepresented appoints a representative or, having been represented appoints a replacement representative. If such an event occurs then that party must as soon as reasonably practicable following the appointment notify the Adjudicator and the other parties in writing of the details of that representative or replacement representative. There is also provision for notification in the case where a party who was previously represented ceases to be so represented.

 

37.              In so far as this jurisdiction is concerned I have already pointed out that by virtue of Rule 35 of the Practice and Procedure Rules at the hearing a party may conduct his case himself or be represented or assisted by any person whether or not legally qualified. Thus, there is no requirement in the jurisdiction that if a party is represented at the hearing that representative must be legally qualified.

 

38.              Drawing together these various strands I therefore conclude that, following the judgment of Potter J in the Piper Double Glazing case (cited with approval in the Agassi case), the effect of that judgment is that the purpose of a costs order is to effect reimbursement to the successful party of all costs properly incurred in the proceedings, i.e. both prior to and at the hearing, whether incurred by a legally qualified or a non legally qualified lay representative. This means that in the particular circumstances of certain jurisdictions, such as in tribunal proceedings or arbitrations, where the rules regarding representation are different from those contained in the CPR affecting the High Court and county courts, there is in principle no reason why the reasonable charges of that representative should not be recoverable under a costs order made against the paying party. I am also fortified in this approach by the decision of Master Wright in the Fosberry v HM Revenue and Customs case where he found that a non-lawyer had a statutory right of audience before a VAT Tribunal and that his charges were recoverable under a costs order.

 

39.              Thus, in my judgment, Rule 35, together with the other rules to which I have made reference, indicate that there is nothing which precludes the recovery of a non-lawyer’s reasonable charges for acting as a representative in proceedings before the Adjudicator provided that such costs have been reasonably incurred. Further, there is nothing in the Practice and Procedure Rules nor in the case law that requires that such a representative should belong to a professional body, although it may be necessary to scrutinise carefully the individual items of costs sought on a case by case basis by such a representative.

 

40.              Further, I refer to the overriding objective contained in Rule 3 of the Practice and Procedure Rules in support of a claim for costs by a non-legally qualified representative on the basis of –

 

(1)               to assist in ensuring that the parties are on an equal footing – in many cases a party cannot afford a solicitor or his costs would be disproportionate, and

(2)               to save expense particularly if the charges are less than a solicitor would have charged, and

(3)               to ensure matters are dealt with expeditiously and fairly where a party in person would have difficulty understanding the proceedings and how to deal with them.

 

Rights of audience and lay representatives

41.              Section 27 of the Courts and Legal Services Act 1990 (“the 1990 Act”) regulates the right to appear in court. “Court” is defined in section 119(1) of the 1990 Act and includes any tribunal to which the Administration of Justice and Tribunals Council is under a duty to keep under review. The Adjudicator falls within this definition. General rights of audience (advocacy rights) are granted to duly qualified barristers or solicitors (and certain others) and employees of solicitors may appear at hearings held in “private”.

 

42.              The term “lay representative” relates to a person who does not possess advocacy rights and may not even be a lawyer, but to whom the court grants a right of audience on behalf of a party in relation to the proceedings before that court.

 

43.              Thus, although it is correct to say that the 1990 Act regulates who can conduct litigation in relation to “any proceedings” meaning proceedings in any court and who has a right of audience in relation to “any proceedings”, in my judgment, in this jurisdiction such statutory provisions have to be viewed in the light of Rule 35 of the Practice and Procedure Rules namely that a party may conduct his case at the hearing himself or (subject to paragraph (2)) be represented or assisted by any person, whether or not legally qualified. Thus, in my judgment, subject to the overriding consideration of whether such costs were reasonably incurred or reasonable and proportionate in favour of the receiving party, I consider that the costs of a non-legal representative are capable of being recovered by the successful party.

 

Conclusion

44.              I come to the following conclusions:-

 

(1) I find that the various cited court cases both pre and post CPR, to which reference has been made above, are of limited assistance in reaching a conclusion as to whether the costs of a non-legally qualified lay representative can be successfully claimed in this jurisdiction, both prior to and at the hearing. This jurisdiction is not governed by the CPR, but is governed by its own rules, namely the Practice and Procedure Rules. Thus in so far as the costs issues relating to litigants in person are concerned I consider that the regime imposed by the CPR is not directly relevant in this regard.

 

(2)               Based upon the Practice and Procedure Rules I find that in principle in this jurisdiction any reasonable fees and disbursements should be allowed in the case where a successful party instead of engaging a legally qualified representative relies upon the services of a non-legally qualified representative in relation to the conduct of proceedings which includes the hearing itself.

(3)               On this basis I therefore consider that the costs of Mr Julian Stratford, as a lay representative, are in principle recoverable costs on the basis that he was acting as a non-legally qualified representative for and on behalf of the Applicants in the conduct of the proceedings prior to the hearing. At the hearing itself Mr Phippen acted on behalf of the Applicants and not Mr Stratford as Mr Stratford was a witness in the case. As I have already stated I am uncertain if any claim is being made for Mr Phippen’s appearance and this should be clarified by the Applicants. In so far as at the hearing is concerned Mr Stratford therefore should be entitled to his expenses as a witness in attendance, but no more. Care should also be taken in making the appropriate assessment as to the reasonableness of such fees charged throughout by Mr Stratford as he does not hold a suitable legal qualification.

 

45.              The question then arises for consideration as to whether or not the charges sought by the Applicants and incurred by Mr Stratford have been reasonably incurred or reasonable and proportionate in favour of the paying party having regard to all the circumstances (see Rule 42(9) and (10) of the Practice and Procedure Rules).

 

46.              In the particular circumstances of this case I have decided that as the costs sought are somewhat high, and as there has been no breakdown of the work done representing such costs I consider that the Applicants should provide a breakdown in accordance with Form N260 to be sent both to this Office and to the Respondents within 14 days of this Decision. The Respondents will then have 14 days thereafter to comment upon that breakdown. Once having received the breakdown and any comments which the Respondents are so minded to make, I shall then reach a decision as to whether I shall deal with the question of the assessment thereafter, or whether I shall send the matter to a costs judge to make an appropriate assessment in the circumstances.

PERMISSION TO APPEAL

47.              In a letter dated 23^rd March 2010 the Respondents sought permission to appeal my Decision. The grounds for the Application for Permission are comprehensively set out in the letter attached to which are also a number of appendices. The thrust of the Respondents’ case in this regard is that the Red Land was not included in the December 1854 Indenture when a mathematical calculation is made of all the land listed in that Indenture it does not include the Red Land. On this basis it is submitted that the October 1905 Indenture is wrong to include that land. Various other points are taken by the Respondents insofar as the deeds and maps are concerned and that it is beyond peradventure that insofar as the paper title is concerned the Respondents are the true owners of the Red Land. The Respondents also rely upon a number of photographs and a report produced after the hearing from a Mr Anthony Field which is directed to physical features on the land, which, it is said, support the Respondents’ case.

 

48.              I do not consider that any of the points made by the Respondents in their letter dated 23^rd March 2010 persuade me that I should grant permission to appeal my Decision. I refer to paragraphs 49 to 55 of my Decision where I set out the reasons why I consider that the Applicants are the true current paper title owners of the Red Land (albeit that I do state that it is not entirely free from doubt). I came to the conclusion that the true documentary root of title to the Red Land is based upon the December 1854 Indenture which is first in time. I also state in paragraph 54 that not only do the Applicants hold the paper title, but also I have found that the Applicants and their predecessors in title have been in possession of the Red Land. The Applicants in any event barred the unregistered paper title of the predecessors in title of the Respondents in the 1940s and that the registered proprietor for the time being of the Red Land has held the title on trust for the Applicants as at the date of first registration of Lashenden Cottage in 1993. It was on this basis that I found that the Applicants were entitled to rectification of the Register by removing the Red Land from Lashenden Cottage to Lashenden Farm.

 

49.              I can find no reason for a successful challenge to my findings. Accordingly, I dismiss the Respondents’ Application for Permission to Appeal. If they are so minded the Applicants can renew this Application for permission before the Chancery Judge.

 

 

 

Dated this 15^th day of June 2010

 

 

 

By Order of The Adjudicator to HM Land Registry