Gittins & Anor, R. v

In both these cases, the court granted a retrospective representation order in circumstances where counsel acting on behalf of each of the appellants had been privately paid for the application for leave to appeal. In both cases counsel have, quite properly, accepted that if they are paid under the representation order, they cannot retain any money paid to them privately for the purposes of these applications. We wish to make it quite clear that we do not consider for one moment that counsel in either case have acted in any way improperly.

The problem, however, is that public and private funding should not co-exist. That, of course, is the reason why counsel will forgo the fees that they have received, or are entitled to receive, under the private funding arrangements. The question which we have to determine is whether or not by reason of the private funding arrangements, they are entitled to payment under the representation orders. It is unnecessary in order to answer that question, to set out in any detail the relevant regulations. Suffice it to say that the court is empowered to make a representation order at any stage in the proceedings after the notice of leave to appeal has been given (Schedule 3, paragraph 10(5) of the Access to Justice Act 1999). And where a representation order is granted, the judge (or appropriate officer) may specify the stage of proceedings at which a representation order shall take effect. (para 10(6)).

The consequence is that, after a successful application for leave to appeal, a representation order is frequently made which covers both retrospectively the work done in relation to and including the application and prospectively the appeal. The only relevant restriction on payment is contained in paragraph 22 of the Schedule which provides:

“Where a representation order has been made, the assisted person’s solicitor or advocate, whether acting under a representation order or otherwise, shall not receive or be a party to the making of any payment for work done in connection with the proceedings in respect of which the representation order was made........”

This is the only mechanism in the Schedule which seeks to give effect to the principle that public and private funding should not co-exist. It does so by rendering unlawful the receipt or payment of any money in proceedings in which the representation order has been made. The wording makes it clear that that prohibition only takes affect after the order has been made. There does not seem to us to be any way in which the paragraph could be construed so as to catch a receipt or payment made before the making of the order. In any event, in the present cases, the question is whether or not payment should be made under the representation order. And the paragraph has nothing to say as to that. In other words, there is no statutory mechanism which disentitles counsel in the present cases from receiving money from public funds under the representation orders.

This is clearly capable of producing an unsatisfactory result. A representation order could be made to operate retrospectively when the court is unaware that the previous work has been privately funded. It seems to us that the remedy lies in ensuring that the court is informed of whether or not such private funding has been in place. It can then decide whether to make a representation order retrospective and if so on what terms. Any application for such a representation order should therefore state whether or not private funding has been in place at any time prior to the application; and if that information is not given, or is unclear, the court should decline to make any representation order retrospective, or otherwise. If private funding has been provided for the period before the application, and the court nonetheless considers that the representation order can be made retrospective it should always be on terms which ensure repayment of any sum so paid to who ever has been making the payments. It may however be preferable to adjourn the application for a representation order in so far as it relates to past work until the hearing of the appeal, when the court can consider the matter in the light of all the circumstances, including the outcome of the appeal. If the appeal is successful, the question may be whether a retrospective representation order, or a defence costs order, would be most appropriate.

In the present cases, we can see no justification for withholding payment for the work done by counsel; but counsel should be prepared to provide proof that any payments made to them other than under the representation order have been repaid.