The Chorley Principle – (JH v CH & SAP (Costs: the Chorley principle, Litigants in person) [2020] EWCOP 63).

The case was a dispute about a revoked enduring power of attorney and appointment of a solicitor under a lasting power of attorney.  The rules on costs of a litigant in person who was also a solicitor were considered by the Court of Protection.

What is the Chorley Principle?

The Chorley Principle confirmed that solicitors successfully defending proceedings in person were entitled to recover the same costs as if they had employed a solicitor and they were not restricted to their out-of-pocket expenses. It was an exception  to the common law rule that self-represented litigants could not recover costs.

In the recent case of (Halborg v EMW Law, LLP [2018] 1 WLR 52), when giving judgment, Sir Terence Etherton, Master of the Rolls, re-stated the Chorley principle: The common law principle established by the Chorley case may be summarised as being that:

(1) a solicitor who acts for himself as a party to litigation can recover not only his out of pocket expenses but also his profit costs, but he cannot recover for anything which his acting in person has made unnecessary.

(2) the reason is not because of some special privilege but on the purely pragmatic grounds that:

(a) there has been an expenditure of professional skill and labour by the solicitor party.

(b) that expenditure is measurable.

(c) the solicitor party would otherwise employ another solicitor and, if successful, would be entitled to recover the costs of that other solicitor.

(d) since he cannot recover for anything which his acting in person has made unnecessary, the unsuccessful party will have the benefit of that disallowance and so would pay less than if the solicitor party had instructed another solicitor.

Case Background

The case of JH v CH & SAP,  was a dispute about the applicant’s capacity to revoke an enduring power of attorney made in favour of the first respondent (the applicant’s daughter) and to execute a lasting power of attorney appointing the second respondent instead. The daughter was a solicitor and, at the time, employed by KSN solicitors. However, she did not instruct KSN, but did the relevant work on behalf of the Protected Party.

In a costs hearing the Court of Protection held that the costs of the solicitor, who, in her capacity as attorney, had acted as a litigant in person for a period during court proceedings, could not be assessed under the Chorley principle.

The Court of Protection held that the principle applied only where the solicitor litigant had instructed, expressly or impliedly, a firm, including their own firm, to act for them. The evidence was that the solicitor had not instructed the KSN.

Regarding costs, there were 3 periods of time to be considered. The 1st was during which the solicitor was acting on behalf of the Protected Party pursuant to the latter’s original retainer of the firm of KSN.  Here the court ruled that the costs were not inter partes litigation costs but were a matter between the firm and their client or her estate.

The 2nd period was where the solicitor acted in person on behalf of the Protected Party.  The Court did not agree that the Solicitor should be entitled to all costs  pursuant to the usual order in these proceedings, as set out in the CoP rules. The Court also confirmed that those costs should be assessed pursuant to the Chorley principle as she was employed by the solicitor’s firm while acting in the course of her employment. The court could see no basis for ordering the costs incurred to be assessed as if they were client/solicitor costs as between the applicant and KSN

The 3rd period was during which the solicitor acted as a litigant in person. Therefore, costs could be recovered as litigant in person.

Brian Ferry is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact him at Brian.Ferry@clarionsolicitors.com and 07741 663809 or the Clarion Costs Team on 0113 246 0622

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