Law report: Official receiver acts as a litigant in person

10 March 1999 Official Receiver v Brunt and others Court of Appeal (Lord Justice Aldous and Lord Justice Sedley) 2 March 1999

WHEN THE official receiver appeared in person in directors' disqualification proceedings, he was acting as a litigant in person, and was entitled to have his costs taxed under RSC Order 62, rule 18.

The Court of Appeal allowed the appeal of the official receiver against a decision that he was not entitled to recover, as a litigant in person, costs incurred by him in seeking disqualification orders against three company directors under section 7 of the Company Directors Disqualification Act 1986.

In July 1992 the official receiver obtained disqualification orders in the High Court against the three respondents under section 7 of the 1986 Act, together with an order against each respondent that he pay the official receiver's costs of the application on an indemnity basis.

The bill of costs included the costs of work done by the Treasury Solicitor, who was instructed for the latter part of the proceedings, and his disbursements, which included counsel's fees. It also included work done by the official receiver himself. He contended that as a litigant in person he was entitled to have his costs taxed according to RSC Order 62, rule 18. The deputy master concluded that the official receiver did not rank as a litigant in person.

On appeal to the Chancery Division it was argued for the official receiver that the litigant in person was not, in law, the official receiver, but was the Crown. The appeal was dismissed, and the official receiver appealed.

Jonathan Crow (Treasury Solicitor) for the official receiver; Peter Martin (Needleman Treon) for the first respondent.

Lord Justice Aldous, handing down the judgment of the court, said that the office of official receiver had been created by the Bankruptcy Act 1883. For present purposes the duties of the official receiver were to be found in the Insolvency Act 1986.

Section 7(1) of the Company Directors Disqualification Act 1986 gave the official receiver locus standi to move for a director's disqualification, and rule 10 of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987 gave official receivers and deputy official receivers the right of audience in any proceedings to which the rules applied. Section 1(1) of the Litigants in Person (Costs and Expenses) Act 1975 provided for the taxation or other determination of any costs of a litigant in person which were ordered to be paid by any other party to the proceedings.

The office of official receiver was not a prerogative office under the Crown, nor was it made by statute a Crown office. It was a statutory office. Although it was generally occupied by individuals who had until their appointment been civil servants within the Department of Trade and Industry, and, although they continued by law to act at and under the direction of the Secretary of State, they ceased on appointment to be civil servants in the proper sense of servants of the Crown employed in the business of government within a department of state.

As the holder of a statutory office, each official receiver was empowered to bring proceedings including disqualification proceedings in his or her own name, and was accorded by law a right of audience before the court. The legal and physical fact in a case such as the present was that the official receiver was empowered by law to act without representation in certain civil proceedings. When he or she did so, the description "litigant in person" was apposite.

In working upon the present case the official receiver had incurred costs over and above disbursements which were pecuniary in nature and amounted to pecuniary loss. It followed, applying Re Eastwood (deceased), Lloyds Bank v Eastwood and others [1974] 3 All ER 603, that RSC Order 62, rule 18(2) applied to the quantification of his costs and he should be allowed two-thirds of the sum which in the opinion of the taxing office would have been allowed if he had been represented by a solicitor.