COST BITES 49: A LAWYER WHO ACTS FOR HIMSELF HAS … A DIFFICULT TIME GETTING PAID: SOLICITOR DEFENDANT CONFINED TO LITIGANT IN PERSON RATES

In Patel -v- Karmakar (12th January 2023) District Judge Lumb, sitting as a Regional Costs Judge, decided that a solicitor acting for himself in litigation could only recover the litigant in person rate.  A copy of the judgment is available here Patel v Karmakar judgment as handed down

THE CASE

The claimant and the defendant were both solicitors.  The claimant brought an action against the defendant alleging overpayments had been made.  The action was struck out on the grounds of limitation. The claimant was ordered to pay the defendant’s costs.

THE DEFENDANT’S REPRESENTATION

The defendant worked for a firm of solicitors.  Those solicitors never went on the court record as acting for the defendant, nor was it asserted that they had acted for the defendant prior to the issue of proceedings.

THE ISSUE

The preliminary issue being determined was whether the defendant could recover costs on the basis of being represented or whether they were confined to costs as a litigant in person.   The defendant was claiming a rate of £500 an hour.

THE COST JUDGE’S DECISION

The judge found that the defendant never had a solicitor go on record.  Recoverable costs were confined to the litigant in person rate.

“Can the Defendant bring himself within the exception to the definition of litigant in
person in CPR 45.6 (6)?

23. In my judgment, it is the requirement to be represented by the firm that is crucial for
the Defendant to bring himself within the exception in what is now CPR 46.5.

24. I find support for that analysis in the decision of Master Leonard in Zakirov v
Newmans Solicitors [2012] EWHC 90222 (Costs) in paragraphs 48 et seq and in
particular at paragraph 52 “ a solicitor is a litigant in person, like any other litigant in
person, if he is on the court record as acting for himself. If the record shows that he is
represented by a firm of solicitors, he is not. That is the case whether or not he is a
partner in or employee of the firm on the court record.”

25. It is for precisely that reason that I conclude that the precise status of the Defendant
with Saunders is immaterial and therefore I do not need to make a formal determination
of his status.

26. Further support for this conclusion can be found in paragraph 24 of the judgment of
HHJ Evans-Gordon in JMH “in all the reported cases the solicitor litigant was acting
through his own practice or firm or had instructed the third-party firm and “relieved
the firm of some of the work by doing it himself”. The essential point to be drawn from
them is that the solicitor party was not acting in person, was not a true litigant in
person. There is no case that I have been taken to which permits a true litigant in person
to recover costs of the professional rate without being able to establish personal loss.”

27. I also agree with the analysis of HHJ Evans-Gordon that to allow otherwise would
require an extension to the Chorley Principle. It is not for first instance judges below

the Court of Appeal to extend the Chorley Principle by interpreting the provisions of
CPR Part 45.6 in any way other than the plain and ordinary meaning of those words. If
the position is to change then this would most likely have to come from a change made
by the Civil Procedure Rule Committee or at the very least by the Court of Appeal itself.

28. I recognise than in coming to this conclusion my view differs from that reached by Cost
Judge Rowley in Poole. Poole is heavily relied upon by Mr Whittaker and although he
acknowledges the decision is not binding upon me, he submits that it is highly
persuasive given Cost Judge Rowley’s status as a specialist judge in the SCCO and that
he is one of the co-authors of one of the leading costs textbooks, Cook on Costs.

29. Whilst the facts and status of the receiving party in Poole would appear to be on all
fours with the status of the Defendant in the present case, I respectfully disagree with
the analysis and conclusion. Having read the judgment carefully, nowhere has Costs
Judge Rowley considered the distinguishing features in Poole from the other decisions
post-CPR namely the absence of the requirement that the receiving party was acting
through his firm evidenced by them being on the court record for him.
30. This apparent oversight appears to have arisen from the way in which the case was
argued before him judging by his summary of the submissions made to him in
paragraphs 22 et seq of the judgment.
31. The proposition from the paying party in Poole appeared to be limited to the need for
the receiving party to have his own practice as a solicitor either as a sole practitioner or
in partnership with others. That contention was only dealing with part of the test as set
out in CPR 45.6 and the accompanying practice direction. The reference to the need to
be represented by the firm appears to have been completely overlooked. Instead, Costs
Judge Rowley allowed himself to be distracted into considering the position of

nonpractising solicitors as being ones who would be caught by CPR 45.6.
Conclusion

32. For these reasons, I prefer the submissions of Mr Kapoor on behalf of the Claimant
paying party and conclude that for the purposes of CPR 46.5 the Defendant is a litigant
in person.

33. The mere assertions by the Defendant that he could have spent more of his time working
on matters for clients whether during the working day or otherwise is insufficient to
establish that he has suffered a financial loss let alone the extent of that loss for the
purposes of CPR 46.5(4)(a). It is therefore impossible to apply the cap under CPR 46.5
(2) of two thirds of what an instructed solicitor on the record would have been able to
recover. The Defendant will therefore recover on the standard basis for work which
had been reasonably undertaken and is reasonable in amount at the default litigant in
person rate of £19 per hour.