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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Benson v Richards [2002] EWCA Civ 1410 (2 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1410.html Cite as: [2002] EWCA Civ 1410

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
TELFORD COUNTY COURT
(HIS HONOUR JUDGE ALTON)

		Royal Courts of Justice Strand London, WC2 Wednesday, 2 October 2002

1. THE VICE-CHANCELLOR: For reasons which we will give in our written judgments in due course, we remit the application to commit the defendant, Miss Samantha Richards, to a High Court Judge of the Chancery Division sitting in Birmingham, to be heard by him as soon as is reasonably possible, subject to any contrary order that he may make as to either date or the place of hearing.
(Submissions re: appellant's adjournment application followed.)
2. THE VICE-CHANCELLOR: For reasons we shall give in our judgment in due course, we refuse the application made by the appellant for an adjournment and will now proceed to the hearing of the appeal.
(Submissions re: appeal followed.)
3. THE VICE-CHANCELLOR: In view of the importance of the matter for the conduct of any future proceedings, we propose to put our judgments into writing, but we announce in open court now that the appeal is dismissed.
4. As far as concerns the hearing of the application for committal which we have remitted to the Chancery Judge in Birmingham, we direct that it be heard on or as soon as possible after 21^st October, subject to any further order of that judge.
5. MISS MaDONALD: My understanding, your Lordship, is that there is, as I indicated earlier, time available between 21^st and 24^th, and of course we are keen to get a fixture.
6. THE VICE-CHANCELLOR: It is up to the judge, but we want it to come on before him on the 21^st so he is seized of it and will then give directions as to its future conduct.
7. MISS MaDONALD: Could I ask for an estimate in relation to the application on the 21st of realistically two days? I understand there is court time available to meet that.
8. THE VICE-CHANCELLOR: Is your estimate two days?
9. MISS McDONALD: I would prefer to make a shorter estimate.
10. THE VICE-CHANCELLOR: That is a matter between you and the Birmingham Chancery Judge. What about costs?
11. MISS McDONALD: I ask for my costs.
12. THE VICE-CHANCELLOR: Miss McDonald is asking for the costs of the appeal.
13. MRS RICHARDS: My Lord, today Samantha Richards, her legal aid certificate is live and still in force and she should have been defended by counsel except for the point that the boundary issue was going to be mentioned today. That was the only thing that stopped it. So I do not believe that the defendant should pay the costs of this application. Could I also ask further, we have been in and out of court. I at the moment am on antibiotics. The defendant has not had time to take treatment for her back since she has been out of prison. We have been in and out of court now for the last eighteen months on an issue that we believe will be overturned.
14. THE VICE-CHANCELLOR: As far as the legal aid certificate is concerned, we still have not seen it.
15. MISS McDONALD: My Lord, my solicitors have never been served with it.
16. LORD JUSTICE POTTER: What is the position when somebody is invited to show cause? If the legal aid certificate has not been formally discharged then it is in being, is it? The mere fact that she was not represented here does not indicate as such that legal aid has been withdrawn. What is the position?
17. MRS RICHARDS: It does.
18. MISS McDONALD: We are in some difficulty. Ideally I would be asking the court to show cause to the Legal Services Commission.
19. THE VICE-CHANCELLOR: Why do we not make an order -- I am not sure what the current form is -- against the Legal Services Commission, and if they come in and say 'the certificate was discharged', then you will have to try again.
20. MISS McDONALD: I would be very content for the court to make that order.
21. THE VICE-CHANCELLOR: We will make an order for costs of the appeal against the Legal Services Commission, if that is the correct form, and make an order for a nil contribution. But I am not myself satisfied that that is the correct form.
22. MISS McDONALD: My understanding is that, first of all, the court needs to make a finding that it is just and equitable that public funding should meet the claimant's costs, and, secondly, that there should be an order that the Legal Services Commission should show cause as to why they should not be bearing those costs. They are certainly entitled, as I understand it, to have an opportunity to come before the court and say why they should not be bearing those costs.
23. THE VICE-CHANCELLOR: Miss McDonald, we will make an order against the Legal Services Commission in whatever is the appropriate form. We would invite you to draw up a minute as to what it is and lodge it with the Associate. But is not an order for costs against your daughter, unless and until the certificate is discharged.
24. MRS RICHARDS: My Lord, I think you will find the letters in amongst here, the Legal Aid Service make it quite clear, because they were informed that a boundary issue was going to be brought up today, that they will not foot the cost. The legal aid certificate is there and so is the bill. That is why I wanted my daughter protected today. That is why I asked for the adjournment.
25. THE VICE-CHANCELLOR: That is the order we are making, Miss Richards, and if the Legal Services Commission wish to say that it is the wrong order, then they will come back and say so. But at the moment it does not affect your daughter.
26. MRS RICHARDS: Pardon?
27. THE VICE-CHANCELLOR: At the moment it does not affect your daughter because it is not an order against her.
28. LORD JUSTICE POTTER: It is a favourable order to you if it stands. If the Legal Services Commission come back and argue about it then there may have to be further argument.
29. MRS RICHARDS: Yes.
30. LORD JUSTICE POTTER: But you do not suffer any disadvantage by saying thank you or whatever --
31. MRS RICHARDS: I am sure they will.
32. LORD JUSTICE POTTER: -- to the court in that respect.
(Not part of approved judgment) ORDER: Application of Claimant to commit the defendant remitted to High Court Judge of Chancery Division sitting at Birmingham on 21st October 2002; appeal of defendant dismissed; section 11 order against Legal Services Commission.