Selman Turk v The Legal Aid Agency

The question raised by this appeal is whether the High Court had jurisdiction to make a “Recovery of Defence Costs Order” (“RDCO”) under the Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 (the “Recovery Regulations”), against the appellant (“Mr Turk”), who was the defendant to contempt proceedings.

For the reasons set out below I consider that the High Court did have jurisdiction and that this appeal should be dismissed.

Mr Turk was the subject of a freezing order, which imposed on him a number of disclosure obligations. The claimant in the underlying proceedings, Mrs İşbilen, brought committal proceedings against Mr Turk, alleging a breach of those disclosure obligations. For the sake of simplicity, I will refer to proceedings of this type, seeking an order for committal for breach of an order of the High Court, as “civil contempt proceedings”, although it is right to point out that there are other forms of contempt proceedings which are also civil in nature.

Sir Anthony Mann, sitting in retirement (the “judge”) found that Mr Turk was in contempt of court and sentenced him to 12 months’ imprisonment: Isbilen v Turk [2024] EWHC 565 (Ch). Mr Turk’s appeal on the question of liability was dismissed, but he successfully appealed the sanction, the Court of Appeal ruling that the sentence be suspended: Turk v Isbilen [2024] EWCA Civ 568.

For the purposes of the contempt proceedings before the judge, Mr Turk was entitled as of right to legal aid. At the conclusion of the proceedings, the Legal Aid Agency (“LAA”) sought an RDCO from the judge. Mr Turk was directed to provide a means form, setting out details of his means. Mr Turk contended that the court had no jurisdiction to make an RDCO. An oral hearing took place before the judge on 21 March 2025. In a reserved judgment dated 8 April 2025, the judge determined that the court had jurisdiction to make an RDCO and ordered Mr Turk to pay to the LAA the whole of the costs of his representation before the High Court, amounting to £392,823.70.

Mr Turk appeals on the sole ground that the judge erred in finding that “criminal proceedings before any court other than the magistrates’ court or the Crown Court” in Regulation 2 of the Recovery Regulations included civil contempt proceedings, and therefore erred in concluding that the Recovery Regulations applied to these proceedings at all.

In granting permission on 17 July 2025, I noted that this case raises an important point of principle which has not yet been considered by the Court of Appeal. In fact, according to the researches of Counsel, this case is the first time that an RDCO has been made, or even sought, in civil contempt proceedings, notwithstanding that the jurisdiction has been in place since 2013 and the court is under a duty to make such an order.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) provides for representation in criminal proceedings in the circumstances set out in s.16(1):

It is common ground that for the purposes of s.16 of LASPO, although the contempt proceedings involving Mr Turk were civil in nature, they were criminal proceedings: see The All England Lawn Tennis Club (Championships) Ltd v McKay [2019] EWHC 3065 (QB); [2020] 1 WLR 216 (“McKay”), per Chamberlain J.

That is as a consequence of the definition of criminal proceedings in s.14(h) of LASPO and Regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013 (the “General Regulations”):

S.23(1) of LASPO provides that “[a]n individual to whom services are made available under this Part is not to be required to make a payment in connection with the provision of the services, except where regulations provide otherwise”. S.23(2) provides that:

The relevant regulations for the purposes of s.23 of LASPO include the Recovery Regulations. The purpose of the Recovery Regulations is described in Regulation 4 as making provision for the relevant court to make a determination under s.23 of LASPO “that a represented individual is required to make a payment in respect of the cost of their representation in relevant proceedings”.

Regulation 2 of the Recovery Regulations defines “relevant proceedings” as:

Regulation 5 of the Recovery Regulations provides:

The following provisions of the Recovery Regulations are also of some relevance:

The judge identified the critical issue as the meaning of “criminal proceedings” within the definition of “relevant proceedings” in Regulation 2 of the Recovery Regulations. Specifically, the question was whether, as the LAA contended, it carried the meaning of the defined term “criminal proceedings” in LASPO.

He observed that the LAA’s argument was simple: the term “criminal proceedings” is defined in s.14(h) of LASPO as expanded by Regulation 9 of the General Regulations, and that includes, among many other things, civil contempt proceedings arising from the breach of an order of the High Court; and by virtue of s.11 of the Interpretation Act 1978, terms used in secondary legislation ordinarily have the same meaning as they bear in relevant primary legislation:

The judge then addressed the various materials relied on by Mr Turk to show that there was a contrary intention in the Recovery Regulations, such that relevant proceedings included only appeals in criminal proceedings. Much of the detail of those arguments was repeated in the arguments before us, and I address it below. The judge rejected them, concluding at §39 that there was nothing in the materials cited that amounted to a contra-indication and no anomalies – if the LAA was right – sufficient to displace the clear interpretation answer to the question of principle raised.

Accordingly, he accepted the simple argument advanced by the LAA, and concluded that criminal proceedings for the purposes of the Recovery Regulations include civil contempt proceedings.

Mr Mallalieu KC, who appeared with Ms Elves for Mr Turk on this appeal, accepted that the definition of criminal proceedings in s.14(h) of LASPO, as expanded by Regulation 9 of the General Regulations, applied to the use of that same term in the Recovery Regulations unless it was possible to identify a contrary intention.

He submitted that a contrary intention could be discerned by applying the normal principles of statutory construction, as explained for example in R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28; [2023] 1 WLR 2594, per Lord Sales at §40 to §49. The primary means of construing legislation is the wording of the provision itself read in the context of the group of sections of which it forms part and of the statute as a whole. Secondary means included, however, reference to Explanatory Notes accompanying a statute and an Explanatory Memorandum accompanying secondary legislation. At §44, Lord Sales referred to the possibility of using subordinate legislation as an aid to the interpretation of a statute, where they are promulgated at roughly the same time and are intended to form part of a single scheme. At §43, Lord Sales observed that courts will not interpret a statute so as to produce an absurd result, unless clearly constrained to do so by the words Parliament has used, commenting that the courts give a wide meaning to absurdity in this context, although cautioning that it should not be relied on in order to substitute the court’s own view of what is reasonable.

Alternatively, Mr Mallalieu submitted that the same result could be achieved on the basis that the words used in Regulation 2 of the Recovery Regulations did not achieve their intended purpose, in accordance with the principles set out in Qadar v Esure Services Ltd [2016] EWCA Civ 1109; [2017] 1 WLR 1924, per Briggs LJ at §52, citing Lord Nicholls in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, at p.592, discussing the circumstances in which a court might correct obvious drafting errors in legislation:

Mr Mallalieu submitted that the correct interpretative question in this case is whether the following phrase found in Regulation 2, “criminal proceedings before any other court than the magistrates’ court or the Crown Court”, includes civil contempt proceedings in the High Court. He said that it did not because, across the suite of legal aid regulations under LASPO introduced at the same time, the only proceedings in courts other than the magistrates’ court and the Crown Court are appellate proceedings. Having regard to the statutory scheme as a whole, he submitted that the intended use of the term in Regulation 2 is to refer only to appellate proceedings, and not proceedings in the High Court at first instance.

He submitted that this was demonstrated, first, by the anomalies that arise on the judge’s interpretation – both anomalies within the Recovery Regulations and more widely across the legal aid regime – and, second, by reference to historical context.

At the heart of Mr Mallalieu’s submissions on anomalies lies what he referred to as the unjust differential treatment of defendants who are acquitted of the charges made against them, as between those charged with civil contempt and those charged with other criminal offences.

Acquitted defendants are dealt with in the Recovery Regulations at Regulation 8, which provides as follows:

(Regulation 17 enables the court to make an RDCO where a represented individual has failed to provide information as to their financial circumstances.)

This is to be read in conjunction with the provisions for criminal legal aid in the Crown Court where there is also provision for relieving acquitted defendants of the burden of having to contribute to the cost of their representation. It is necessary to set out in more detail the provisions for legal aid as they apply to proceedings in the Crown Court.

As I have noted above, representation for criminal proceedings is governed by s.16 of LASPO. This requires the “relevant authority” (which is either the relevant court or the Director of Legal Aid Casework: see ss.18 to 20 of LASPO) to determine eligibility for legal aid. S.17(1) identifies two tests that must be satisfied: the “means” test, and the “interests of justice” test. S.21 provides that a person may not make a relevant determination that an individual qualifies for services under Part 1 of LASPO without first determining that the individual’s financial resources are such that they are eligible for the services. Financial eligibility is governed by the Criminal Legal Aid (Financial Resources) Regulations 2013 (the “Financial Resources Regulations”).

By Regulation 31(1) of the Financial Resources Regulations, which relates to representation in Crown Court proceedings, the Director must make a determination that the individual is eligible where their gross annual income does not exceed £12,475, or their gross annual income is greater than £12,475 but their disposable annual income is less than £37,500, or they are a child or properly in receipt of a qualifying benefit. By Regulation 31(3), the Director must make a determination that an individual’s financial resources are such that the individual is not eligible for representation under s.16 of LASPO if that individual’s disposable annual income is £37,500 or greater.

The extent to which a represented person in Crown Court proceedings must contribute towards the cost of their representation (pursuant to s.23 of LASPO – set out above) is governed by the Criminal Legal Aid (Contribution Orders) Regulations 2013 (the “Contribution Regulations”). These make complex provision for income contributions (which are paid as the proceedings progress) and capital contributions (which are paid only at the end of the proceedings).

As to the former, in essence, the more disposable income a criminal defendant has, the higher the contribution they must make, subject to upper limits specified in Regulation 15. By Regulation 37, however, where the defendant is acquitted (unless the trial judge considers there are exceptional circumstances) the Lord Chancellor must repay the amount of payment made, together with interest.

As to the latter, Regulations 25 to 29 make provision for the Director to order a capital contribution to the costs of representation, assessed by reference to the amount of the defendant’s disposable capital. This applies where the defendant is convicted. It also applies where the defendant is acquitted, but only if the trial judge considers there are exceptional circumstances: see Regulation 25(b).

Mr Mallalieu submitted that there is a consistent and coherent policy evident in the provisions relating to acquittal across the Recovery Regulations, the Financial Resource Regulations and the Contribution Regulations summarised above. In the Crown Court, any contribution made by the defendant to the costs of their representation will be repaid on acquittal (unless there are exceptional circumstances), and in any other court, on an appeal against conviction, no RDCO can be made unless the court considers it reasonable in all the circumstances to make an order.

If, however, the judge’s interpretation is correct, and the Recovery Regulations apply to civil contempt proceedings, then the defendant to such proceedings is treated differently: an RDCO must be made against them – either as to the whole of the cost of their representation or such part as the court considers reasonable. That, submitted Mr Mallalieu, is an incoherent position, and Regulation 8 of the Recovery Regulations, read together with the provisions relating to contribution orders in the Crown Court, provides a contrary intention to the literal interpretation of Regulation 2 of the Recovery Regulations. He accepted that the hardship to an acquitted defendant in civil contempt proceedings is partially mitigated by the fact that they may recover their costs from the unsuccessful applicant, but maintained that it was nevertheless an “absurd statutory regime” which required an RDCO to be made in such circumstances.

I cannot accept this submission. It is true that the judge’s interpretation means that a defendant to civil contempt proceedings is liable to an RDCO, even if acquitted, whereas a defendant to criminal proceedings in the Crown Court would not be, and would – if acquitted – ordinarily be entitled to be repaid such contribution as they had made to their defence costs. That, however, is not the only difference. Importantly, the entitlement to legal aid is subject to means testing in the Crown Court but not in civil contempt proceedings. That is as a consequence of Regulation 39 of the Financial Resources Regulations:

It is common ground that “criminal proceedings” in Regulation 39 has the same meaning as in s.14(h) of LASPO as expanded by Regulation 9 of the General Regulations. I observe in passing that, if Mr Mallalieu is correct, it has the anomalous consequence that the same phrase used in one of the Regulations made pursuant to LASPO (i.e. Regulation 39 of the Financial Resources Regulations) has a different meaning than it has in another of those Regulations (i.e. Regulation 2 of the Recovery Regulations).

The “interests of justice” test under s.17(1) of LASPO is also deemed to be satisfied in criminal proceedings in the High Court, as it is in Crown Court proceedings (other than appeals to the Crown Court) by Regulation 21 of the General Regulations. (Again, it is common ground that, here, criminal proceedings include civil contempt proceedings in the High Court.)

Accordingly, a defendant to civil contempt proceedings is entitled as of right, without reference to their means, to legal aid in respect of the whole of the costs of their representation. As Mr Cohen, who appeared for the LAA, submitted, there is a sensible and coherent justification for the different treatment in relation to civil contempt proceedings: the risk of an RDCO is tied to the availability, or non-availability, of means testing. At the very least, that link provides a compelling reason why the different treatment is not sufficiently anomalous to lead to the disapplication of the plain construction of Regulation 2.

That is particularly so when regard is had to those defendants, such as Mr Turk, who are not acquitted. Defendants to criminal proceedings in the Crown Court will not have received legal aid unless they satisfy the means test. Those who do obtain legal aid will, if they are convicted, be required to contribute towards the costs of their representation unless they have insufficient resources to satisfy the low financial threshold set under the Contribution Regulations.

In contrast, under Mr Mallalieu’s construction of Regulation 2 of the Recovery Regulations, a defendant to civil contempt proceedings will be funded by the state to the full extent of the costs of their representation, without any risk of having to make any financial contribution to those costs. That will be so irrespective of the extent of their wealth. That is a considerably more anomalous outcome than the supposed anomaly suggested by Mr Mallalieu.

The coherence of the position on the judge’s interpretation is, moreover, underpinned by two further factors. First, in civil contempt proceedings a successful defendant will generally be entitled to a costs order against the unsuccessful applicant. Second, the court’s discretion under Regulation 5 is to make an RDCO in respect of the whole of the costs, or “such proportion of the costs of that individual’s representation in the proceedings as the relevant court considers reasonable having regard in particular to the financial resources of that individual.”

The first factor is more significant than Mr Mallalieu accepted: an acquitted defendant in the Crown Court generally has no entitlement to recover costs from the Crown as prosecutor, but that is compensated for in the case of a represented individual by the ability to make a recovery against the Crown under the Contributions Regulations. There is nothing incoherent in expecting the successful defendant in civil contempt proceedings to seek recovery of their costs from the other party.

The second factor (along with Regulation 11 of the Recovery Regulations set out at ‎15‎(2) above) provides flexibility so as to avoid undue hardship. The court’s discretion performs a function similar to that of means testing, albeit after the event. It was common ground that one of the factors the court could take into account in exercising its discretion is whether a successful defendant to civil contempt proceedings is able to recover its costs from the unsuccessful applicant.

Taking these two factors together, it is perfectly coherent that someone accused of contempt of court in High Court proceedings, and facing the possibility of a prison sentence of up to two years, is able to access funding at the outset to defend themselves, but on terms that they must repay it – to the extent that they can afford to do so – at the end of the proceedings, leaving them – if successful – to seek to recover their costs from the unsuccessful applicant.

The different treatment of acquitted defendants also underlay much of Mr Mallalieu’s submissions as to the historical context.

There was a power to make an RDCO prior to LASPO, under Regulation 3 of the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001 (SI 2001/856) (the “2001 Regulations”). This applied where an individual had received representation funded as part of the “Criminal Defence Service”.

At that time, a person facing civil contempt proceedings could only obtain civil legal aid, and only if they satisfied the stringent eligibility requirements. It was not until King’s Lynn & West Norfolk Borough Council v Bunning [2013] EWHC 3390 (QB); [2015] 1 WLR 531, that it was held that such proceedings fell within the ambit of criminal legal aid under LASPO.

Mr Mallalieu referred to the explanatory memorandum prepared by the Ministry of Justice in respect of the Recovery Regulations, which stated that their general effect was to replicate, in the new context created by LASPO, the effect of the 2001 Regulations, and that “there is no change in the underlying policy”. He also noted that there was no consultation, and no specific matters of interest to the Joint Committee on Statutory Instruments identified.

In light of this, Mr Mallalieu submitted that it cannot have been the intention, when drafting the Recovery Regulations, that their scope was intended to include civil contempt proceedings or that the meaning of “criminal proceedings” was intended to be any broader in scope than the established meaning under the 2001 Regulations.

Pausing there, one of the problems with this submission is that it proves too much. Assuming in Mr Turk’s favour that the legislator did not have civil contempt proceedings in mind when drafting the regulations made pursuant to LASPO, then if that is a reason to construe “criminal proceedings” as excluding civil contempt proceedings, that should be across the board. As I have already observed, however, it is common ground that civil contempt proceedings are “criminal proceedings” for the purposes of: (1) the entitlement to criminal legal aid in the first place; (2) the disapplication of the interests of justice test; and (3) the disapplication of the means test.

Mr Mallalieu suggested that there is some uncertainty over the disapplication of the means test for civil contempt proceedings in the High Court, pointing to the comments of Sharp LJ in National Farmers Union v Tiernan [2015] EWCA Civ 1419 at §27-29, where it was noted that the proposition to this effect in Bunning (above) was based on a concession. He did not, however, suggest that the concession was wrong. Indeed, it would be difficult for Mr Turk to contend otherwise, since he has received legal aid for the whole of his defence costs without being means tested.

Mr Mallalieu further relied on the fact that, under the 2001 Regulations, no RDCO could be made save in exceptional circumstances against a funded defendant who had been acquitted. He submitted that: (1) the same policy is reflected in Regulation 8 of the Recovery Regulations, provided that “criminal proceedings” in Regulation 2 is restricted to appellate proceedings; but (2) if civil contempt proceedings are within the scope of the Recovery Regulations, the fact that an RDCO could be made even if the defendant was “acquitted” would be a change in policy contrary to the indication given in the explanatory memorandum referred to above.

I do not accept that this provides a basis for construing the words of Regulation 2 of the Recovery Regulations otherwise than in accordance with their plain meaning. The regime introduced with LASPO undoubtedly involved a significant change from the previous regime, but that was to render a defendant faced with civil contempt proceedings eligible for criminal legal aid. That meant – because of the lack of means testing – that wealthy defendants to civil contempt proceedings were now entitled to legal aid which would not have been available to them at all before LASPO.

The comparison on which Mr Mallalieu relies is in fact illusory: it depends upon the assumption that those acquitted in civil contempt proceedings would – if criminal legal aid had been available to them before LASPO – have been treated in the same way as any other acquitted defendant in criminal proceedings. If that assumption is true, then it would follow that such an acquitted defendant would not, before LASPO, have been subject to an RDCO, whereas they now are. The comparison is purely hypothetical and inapposite, however, because such a person was not entitled to criminal legal aid at all before LASPO.

In any event, it is again misleading to focus solely on acquitted defendants. On the comparison Mr Mallalieu makes – between the treatment of a defendant to civil contempt proceedings post-LASPO and the treatment of a criminal defendant pre-LASPO – then if his interpretation is correct there would be an equally (if not more) significant difference if a defendant to civil contempt proceedings is convicted. Prior to LASPO they would have been subject to an RDCO whereas now they are not. In other words, even making the assumption required for the purposes of Mr Mallalieu’s comparison, there is a significant change upon the implementation of LASPO, whichever interpretation of Regulation 2 of the Recovery Regulations is preferred.

For these reasons, the reference to historical context does not help Mr Mallalieu.

I would add for completeness that – whether the argument is based on traditional rules of interpretation or on the broader Inco basis – Mr Mallalieu’s interpretation suffers from the difficulty of identifying how Regulation 2 should be read. Three alternatives have been posited on behalf of Mr Turk: (1) in the skeleton argument it was suggested that Regulation 2 applied only to “non means-tested criminal appeals”; (2) one of the alternatives put in oral submissions was that it applied to criminal proceedings “other than those under s.14(h) of LASPO”; (3) the other suggestion in oral submissions was that it applied “other than in civil contempt proceedings”.

I do not accept, as Mr Mallalieu submitted, that it was sufficient for him to establish that the purpose of the Regulations did not extend to the particular type of proceedings in issue in this case. As the passage from Inco quoted above makes clear, while it is not necessary to identify the precise words the legislator would have used, it is necessary – in order to displace the clear meaning of the legislation – to identify the substance of the provision the legislator would have made. The three alternatives offered are substantially different, and on the basis of Mr Mallalieu’s arguments it is impossible to know which – if any – would have been intended.

This is not, however, my reason for rejecting Mr Mallalieu’s argument. I do so for the more fundamental reason that neither the supposed anomalies he cites nor the historical context, provide any reason for finding a contrary intention to the plain meaning of the words as identified by the judge.

Mr Mallalieu advanced a number of further subsidiary points, but none of them changes the analysis or conclusions set out above. I deal with them briefly here for completeness.

First, he submitted that the anomalous treatment of acquitted defendants is exacerbated by the fact that under the Recovery Regulations, a person found guilty of contempt at first instance, but acquitted on appeal, would still be subject to the RDCO made at first instance, despite such an order being prohibited on appeal. This adds nothing of substance to the supposed anomaly relating to acquitted defendants at first instance.

Second, there are differences in the income and capital thresholds for making contribution orders in the Crown Court and making an RDCO in civil contempt proceedings. He noted that someone convicted of murder, for example, has a maximum liability under an income contribution order of circa £185,000, whereas Mr Turk is required to repay a much larger sum under the RDCO imposed in this case. The fact that there are such differences does not, in my view, get close to establishing anomalies demonstrating a contrary intention sufficient to reject the clear meaning of the wording of Regulation 2.

Third, he submitted that if the Recovery Regulations were meant to enable an RDCO to be made against an acquitted defendant in civil contempt proceedings, then that should have been clearly expressed. As Mr Mallalieu fairly acknowledged, however, the simpler reading of the provisions favours the judge’s construction, and it is Mr Turk that is forced to suggest a meaning that is not apparent from the wording of the provision.

For the above reasons, notwithstanding the elegant and eloquently presented submissions of Mr Mallalieu, the judge was correct in my judgment to conclude that he had jurisdiction to make an RDCO.

I agree.

I also agree.