Civil procedure — legal aid — legally aided person — permissible for assigned solicitor to act on private basis for aided person for part of proceedings not covered by legal aid certificate — obligations owed by solicitor so acting
Legal profession — solicitors — legal aid — assigned solicitor — permissible to act on private basis for aided person for part of proceedings not covered by legal aid certificate — obligations owed
Civil procedure — discovery — specific discovery — appeal against dismissal of application
This was an appeal to the Judge against the Master’s refusal of the specific discovery sought by a legally aided plaintiff in a personal injuries action. Legal Aid not having been extended to cover the appeal, the assigned solicitor acted in the appeal on a private basis for the aided person.
Held, dismissing the appeal, that:
- It was permissible for an assigned solicitor to act on a private basis for the aided person for the part of the proceedings not covered by the legal aid certificate. (See paras. 5–14, 17.)
- The obligations owed by a solicitor so acting included: ensuring that he had his client’s instructions to act on a private basis; explaining to the client the costs implications and the lack of costs protection without legal aid; and informing the Legal Aid Department, the court and the other parties that he was acting on a private basis. (See paras. 15–16.)
- He was also under an obligation not to put himself in a position of conflict with his client’s interests (as happened in the present case since the Master who refused specific discovery was contemplating making a wasted costs order). Initially acting for a fee, the solicitor subsequently indicated that he would act pro bono and, moreover, would personally bear the costs of the appeal awarded to the defendants. (See paras. 18–22, 39.)
- The specific discovery sought was of a very wide scope and was neither proportionate nor necessary, either fairly to dispose of the case or to save costs. (See para. 37.)
This was an appeal against the decision of Master Harold Leong dismissing the plaintiff’s application for specific discovery. The facts are set out in the judgment.