Legal Services Commission v Henthorn [2010] EWHC 3329 (QB)

Neutral Citation Number: 2010 [EWHC] 3329 (QBD)

Case No HG06X00333

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 4 February 2011

Before

His Honour JUDGE ANTHONY THORNTON QC

Sitting as a High Court Judge

Between

Legal Services CommissionClaimant

Aisha HenthornDefendant

Ms Nicola Rushton (instructed by CKFT, Solicitors) for Claimant

Miss Geraldine Clark (instructed by The Bar Pro Bono Unit) for Defendant

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

HIS HONOUR JUDGE ANTHONY THORNTON QC

A. Introduction

[1]In this action, the Legal Services Commission (“LSC”) is claiming recovery from Mrs Aisha Henthorn (“AH”), a voluntarily disbarred barrister, of sums it contends that she was overpaid out of the legal aid fund (“the fund”) when she was in practice. These overpayments occurred when the LSC made payments on account (“PoA”) to AH towards her final entitlement to fees under the LSC PoA scheme. These apparent overpayments had come to light following the detailed assessment of her fees in the relevant cases which had shown that the overall fee that she was entitled to in each of those cases was less than the total of the PoAs that she had received in the same case. These LSC recovery claims, which are called recoupment claims in LSC terminology, are brought under Regulation 100(8) of the Civil Legal Aid (General) Regulations 1989 (“the Regulations”) which were made under the Legal Aid Act 1988 (“the Act”). The Regulations require that AH must repay the fund on demand the total overpayment in any relevant case. These claims are also brought as restitutionary claims for the recovery of AH’s unjust enrichment arising from the overpayment by the fund of sums that AH was not entitled to.

[2]AH carried out the work in the fifteen cases giving rise to these claims between 1987 and 2000 and the total sum claimed is £109,064.68. The LSC considers that AH was also overpaid a total sum of £242,356.20 in further cases in the same period. These further claims have not been included in these proceedings because none of them has yet been the subject of a detailed assessment of costs by the court and the LSC considers that it has no entitlement to reclaim an overpayment until there has been such an assessment. However, the LSC has reserved its position in relation to these further claims and might pursue them in subsequent proceedings in the light of the judgment in this case.

[3]AH’s principal defence to these claims is that the claims under the Regulations are barred by limitation and the restitutionary claims by laches. AH also contends that the LSC has not proved that its entitlement to reclaim the sums in question ever arose. AH also contends the LSC has delayed so long and acted so unreasonably in bringing the claims that they should be stayed as an abuse of process. B. Background (1) The LSC

[4]This case has involved a minute examination of the PoA scheme for making interim payments to legal representatives representing assisted persons under the civil legal aid scheme that was applicable in the 1990s under the earlier Legal Aid and Advice Act 1948. Section 1 of that Act stated that the overall purpose of the legal aid scheme was:

“… to establish a framework for the provision of … advice, assistance, mediation and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means.”

The Act removed the management of the legal aid scheme from the Law Society and placed into the hands of the Legal Aid Board (“LAB”) whose function was to fund legal aid services out of the legal aid fund also established by the Act. The previous system for determining who qualified for legal aid representation and the remuneration for solicitors and counsel undertaking that representation remained largely unchanged. However, the Regulations established for the first time a PoA scheme which allowed an assisted person’s legal representatives to receive partial remuneration for their work prior to the conclusion of the case and the final determination of their entitlement to payment See Explanatory Note (b) in Schedule 2 to the Regulations. . This followed repeated complaints from both branches of the legal profession about the lengthy periods of delay in being paid that were invariably experienced because no payment entitlement arose until the conclusion of any particular case.

[5]The Legal Aid Board struggled through the 1990s to administer a system which had become so large and unwieldy that legal aid expenditure had got out of control and, moreover, the management of the system was being strangled by its own paperwork. These difficulties were referred to in the White Paper Striking the Balance – The future of legal aid in England and Wales (1996) Cm3305. which explained that they were caused, in part by a lack of appropriate mechanisms to control and minimise inefficient working practices of legal representatives and their excessive remuneration. Relevant to the PoA scheme were these comments:

“The doubling in five years in the cost of legal aid, despite continuing efforts to contain it, demonstrates that the current controls are insufficient. … Controlling costs by limiting lawyers’ fees has not proved particularly effective in the past. In fact, in some ways the current scheme gives the highest rewards to lawyers who do more work than is necessary. … It is therefore important not only that legal aid is paid for in a way that encourages efficiency, but also that robust mechanisms are applied to ensure that quality is maintained. … the current arrangements are [not] ideal for the providers of legal services themselves. They do not know how much legally-aided work they will get or, because most fees are decided and paid after the event, how much they will be paid or when.”

Ibid., paragraphs 1.6 – 1.11.

[6]The White Paper initially led to the introduction of more efficient computerised record-keeping systems. These did not achieve the efficiency savings that had been hoped for. As a result, in 2000, the independent LAB was replaced by the LSC which was established as an executive non-departmental public body. This change was coupled with a fundamental change in the legal aid system that involved the introduction of the Community Legal Service and a system whereby service providers contracted with the LSC for the entitlement to provide publicly funded legal services. Further changes occurred in the 2000s with the introduction of tendering and franchising and, for civil representation, a significant reduction in the areas of work eligible for legal representation. Notwithstanding these changes, legal aid expenditure continued to rise so that, by the year 2003 – 2004, the LSC spent £2.1 billion on all legal aid services. Although the LSC managed to maintain its expenditure on legal aid at this figure for the ensuing five years, in 2008 – 2009 its annual accounts were qualified. More recently, the Government has announced that the LSC is to be converted from a non-departmental public body of the Ministry of Justice into an executive agency within the Ministry and that there is to be a severe curtailing of the legal aid budget. These changes have converted the legal aid scheme from being a demand-led scheme to being a capped and confined provider of state-funded legal services for those with limited financial resources.

[7]Thus, this case relates to a period in the history of legal aid and its administration that has now disappeared since the relevant events occurred between ten and twenty years ago and the relevant legal aid system has been replaced by new systems which are already in a state of rapid transformation. However, this case is not a single surviving relic of an historic legal aid system but is one of many surviving legacy claims from the system administered by the LAB in the 1990s. These aged claims for overpaid PoAs to solicitors and barristers, have slowly been dealt with over the last few years and are now the subject of two ad hoc Guidance Notes issued by, respectively, the Law Society and the Bar Council Guidance issued by the Law Society: “Un-recouped payments on account” dated 10 August 2006 and by the Bar Council: “Payments on Account in Publicly Funded Cases” undated, the current version was updated in June 2009. . This case is regarded by the LSC as something of a test case in relation to whether these repayment claims may only be brought as statutory claims or may also be brought as restitutionary claims, what must be established to make good either type of claim, what available defences may be advanced by the legal practitioner involved and when, if at all, these repayment claims become statute-barred or barred by laches. (2) AH and her practice

[8]AH is now aged seventy two and is a Singaporean of Malay descent by birth. She has lived in England for many years and joined the Middle Temple as a student member in 1978 when she was forty years old. She was called in July 1981, completed her chancery and tax pupillage in 1982 and then practised for eleven years in common law chambers in King’s Bench Walk, Inner Temple, London. In the early years of her practice, she combined this with a law lectureship. In 1993, she was able to buy office premises in Watford and she set up her own chambers, Watford Chambers, in Mildred Avenue, Watford with the assistance of two clerks from her existing chambers. Within a short time, these two clerks had left and were replaced by senior clerk and a fees clerk, neither of whom had any previous experience of working in chambers or had received or obtained any training in any aspect of chambers administration or fees collection. AH remained Head of Chambers until she retired from practice and took voluntary disbarment in 2002 although, for at least four years prior to her retirement and disbarment this role was a purely non-active titular one.

[9]AH’s practice is best described as having been an unusual amalgam of a niche practice combined with general civil matters which were, principally, matrimonial, personal injuries, housing and general contractual matters. The niche element of her practice arose from her Singaporean origins and connections. AH’s brother had at one time in the 1960s been Attorney General of Singapore and, thereafter, for many years had held prestigious posts in what became the University of Malaysia. He was a renowned expert in Islamic law. These connections led to a growing practice in private civil law matters with an Islamic law element and a Singaporean and Malaysian connection. AH also developed a Courts Marshall practice. These disparate elements of her practice led to her being very busy through the 1990s and involved her in much travelling to the Far East and to the Isle of Man and Gibraltar. It is clear from the documents adduced at the trial, although limited in number, that she undertook legal aid work when in practice in King’s Bench Walk. Apart from some cases that she had started when in her previous chambers and had brought with her to Watford Chambers, there was a lull in her legal aid work from about 1971 until 1974 when she rapidly built up her legal aid work until her accident and subsequent ill-health left her being virtually incapable of practising between late 1998 and her voluntary disbarment in 2001.

[10]It is clear that in the mid-1990s, AH had a large practice in both her privately and publicly funded spheres of work and, given the amount of travelling that was involved, she was very busy. That is no doubt at least part of the reason for her leaving, certainly in the years after 1973, all matters relating to her fees, fee collection and chambers administration to, respectively her fees clerk and the small committee of members of chambers she appointed to run the chambers.

[11]AH could not remember many details of her time in practice. She thought that her chambers numbered up to ten practitioners in the years it functioned but it is clear that there were constant changes of personnel. This was likely to have resulted from her willingness to take on any young practitioner who was willing and able to pay the lump sum monthly payment she charged to pay for the administration of chambers. AH’s private paying clients were exclusive to herself as was much of her legally aid solicitors but it is clear that there was some brief-switching in legal aid matters of AH’s briefs, no doubt because of her overseas travels on Far Eastern and Courts Marshall work. It would seem that she opened Watford chambers with two other practicing barristers from her previous chambers and that she arranged from the outset for a committee of her chambers colleagues to run chambers. At some stage in the mid-1990s, she appointed Mr Henderson, her son, as her clerk. He had previously been serving in the RAF and he had no experience of clerking barristers before he was appointed. A fees clerk, Ms Alison Crowley, was appointed in the mid-1990s having previously worked in a book-keeping role in an Accountants office. Neither received any training after appointment. Mr Henderson left chambers at some stage not long after AH’s accident. AH appears to have been on reasonable terms with her son until the late 1990s when their relationship completely terminated following the breakdown of his marriage to AH’s daughter-in-law. AH has had no contact at all with her son for many years. Ms Crowley remained as fees clerk and, presumably, as the clerk to chambers when Mr Henderson left until chambers disbanded in 2001 and the freehold was sold in about 2003. In the period before she ceased to practice, AH’s husband also worked in an administrative capacity in chambers following his retirement from the Metropolitan Police Force.

[12]However, AH’s professional career was permanently blighted by a serious car accident in September 1998 when the car she was driving had a head-on collision with another car. This left AH partially deaf. This accident came on top of unsatisfactory gynaecological surgery earlier in 1998 and it was followed by her receiving spinal surgery in 1990, which left her with permanent damage to her left leg, and corrective gynaecological surgery in 2001. Between the time of her car accident and early 2001, AH was notionally in practice but she played virtually no part in chambers and undertook little work. Meanwhile, she was the subject of at least two separate complaints to the Bar Council involving disciplinary investigations. The first related to non-payment of the mandatory BMIF subscription by a member of her chambers. The second concerned her alleged failure to pay back to one of her solicitors fees that she had received which she was not entitled to retain. It would appear that these, and possibly other, complaints did not proceed to being considered by the Conduct Committee of the Bar Council or to a reference to a Disciplinary Tribunal due to AH’s declining health and her inability to recall relevant details of her practice. It would also seem that AH offered to voluntarily disbar herself due to her poor health in return for further investigation and processing of the complaints being dropped. This was accepted and she was voluntarily disbarred in late 2001.

[13]AH and her husband lived in Tring until they sold the property and moved to another property in Great Missenden in October 2006. AH’s health has remained poorly and it further deteriorated when, attending a procedural hearing at the Royal Courts of Justice in December 2009 whilst acting in person, she had a nasty fall which has further incapacitated her. Two working days before the trial, the Bar’s Pro Bono Unit put AH in touch with Ms Geraldine Clark, a senior junior counsel with appropriate experience and expertise in the various areas of law and practice that this dispute gives rise to. Ms Clark accepted instructions and represented AH at the trial with conspicuous skill and ability, particularly given the very short period of time she had had to prepare for it. I should add that the LSC was represented by Ms Nicola Rushton with similar skill and ability.

[14]It was not merely AH’s practice which rapidly disintegrated from 1998. Other members of chambers left and in 2001 chambers was closed and the chambers premises were marketed. They were not finally disposed of until 2003. Since AH stopped visiting chambers soon after her accident, she has no knowledge of what happened, her only contact with Ms Crowley occurring when Ms Crowley attended her house on infrequent occasions. AH could not remember when Ms Crowley ceased to work for her and the other practising or departed members of chambers and she long since lost contact with her. It would appear that when chambers disbanded and the premises were disposed of, all paper and electronically held records were disposed of or destroyed and the only records that AH was able to produce were the bank statements for most of the period of what she contended was her only bank account.

[15]It can be seen from this brief summary of AH’s career that the work for which she received payment was largely carried out in the early 1990s, the PoA and the conclusion of the various cases were largely applied for and paid and the conclusion of the various cases in question concluded in the mid 1990s and the final taxations and demands for payment largely occurred in the late 1990s and early 2000s. The claim form was issued on 3 February 2006. As a result, the investigation into the factual background has been severely hampered by the absence of many relevant documents and the passage of time and the principal issues at the trial revolved around AH’s procedural defences based on limitation, laches and abuse of process. She did, however, raise substantive defences based on the LSC’s alleged failure to follow the statutory procedures laid down for the repayment claims arising from alleged overpayment of PoAs and, in some cases, there being no overpayment in the first place. (3) Details of the claims being made in these proceedings

[16]The LSC was able to print out from its Central Information System (“CIS”) a list of all certificates on which a payment was made to AH. This showed that AH was paid on 81 separate certificates that were issued between 1986 and 1999. A significant number of these certificates have never formally been discharged, whether by a final assessment or by the LSC. Twenty nine were discharged by 5 May 2000, when AH’s account first went into debit and those that are the subject of these proceedings or of possible future proceedings were discharged or considered to have been discharged after that date.

[17]The earliest service rendered by AH in these fifteen repayment claims was provided in June 1992 when she provided an advice on quantum to a claimant in a personal injuries disputeand the most recent in September 1998 when she represented an assisted wife in a financial arrangements matrimonial dispute in the county court. The applications for payments on account in these fifteen claims that were made on behalf of AH were made on various dates between 6 May 1993 and 13 June 2000 with the bulk being made in the years 1994 - 1997. A chronology of each repayment claim is set out in the schedule to this judgment. Each individual chronology is based on such information as is still available about that claim, which varies from a significant amount in a few of the claims to very little in the majority of claims. C. Legal Aid Representation, Payment and the PoA Scheme 19. (1) Scheme for Legal Aid Representation

[18]Terminology. For simplicity, I will refer throughout to the LSC even though it was the LAB that was the body that was responsible for administering the scheme for most of the period during which the work and the assessment of costs covered by these claims was undertaken. The Civil Procedure Rules (“CPR”) were introduced in 1998 and these changed the relevant terminology relating to costs by replacing the cumbrous taxation of costs procedure with the more flexible assessment of costs procedure. These changes did not affect the requirement in the Regulations for a court-based process for determining the amount that a legal representative could recover for work undertaken under a certificate in all but very low value cost claims. Again for simplicity, I will refer throughout to “assessment of costs” even if the relevant court-based determination took place as a taxation.

C. Legal Aid Representation, Payment and the PoA Scheme

[19]Basic structure of representation scheme. The Act and the Regulations defined the type of proceedings and the courts or tribunals that qualified for legal aid representation and which applicants were eligible on financial grounds and what test as to the merits of an applicant’s case should be applied by the LSC when deciding whether to grant an application for it.

[20]A person who wished to obtain representation had to apply for and be granted a legal aid certificate and, when it was granted, he or she became an assisted person. In granting a certificate, the LSC could, and usually did, impose conditions limiting the ambit of the certificate and requiring further approval before any limitation could be amended.

[21]Limitation of a certificate to proceedings. A certificate authorising legal aid representation could only be granted for one particular case or set of proceedings. The costs incurred by an assisted person’s legal representatives in those cases could only be paid for out of the fund if these had been incurred during the validity of the relevant certificate and a certificate’s validity ceased when the proceedings were completed, revoked or discharged. This is clear from regulations 10, 46, 72 and 74 The text of the regulations quoted was applicable to all the claims made in these proceedings but the references to the LAB and to the Area Director of the relevant area in pre-2000 versions of the regulations have been replaced by a reference to “the Commission” being the LSC. : “Application to be made to the Commission 10. Any person who wishes to be granted legal aid for the purposes of proceedings may apply for a certificate- … Scope of certificates 46. – (1) A certificate may be issued in respect of the whole or part of proceedings and may be extended to cover appellate proceedings other than those mentioned in paragraph (2). … (3) A certificate shall not relate to more than one action, cause or matter except in the case of- (a) family proceedings; or (b) an application for a grant of representation which is necessary to enable the action, which is the subject matter of the certificate, to be brought; … Duty to report completion of case 72. - A solicitor shall report forthwith to the Commission either- (a) upon the completion of the case if he has completed the work authorised by the certificate; or (b) if, for any reason, he is unable to complete the work. Effect of revocation or discharge 74. – (1) The Commission may terminate a certificate by revoking or discharging it under this Part of these Regulations.

[22]Nature of representation under the legal aid scheme. An applicant for legal aid remained free to choose which solicitor he or she was to be represent by. The chosen solicitor was to be subject to the same obligations to the assisted client as he or she would have been subject to had the instructions been private save for any specific exception provided for by the statutory scheme. This was made clear by section 32 of the Act which provided that: “Selection and assignment of legal representative 32.– (1) Subject to the provisions of this section, a person entitled to receive advice or assistance or representation may select the legal representative to advise, assist or act for him from among the legal representatives willing to provide advice, assistance or representation under this Act. … (6) The selection by or assignment to a person of a legal representative shall not prejudice the law and practice relating to the conduct of proceedings by a solicitor or counsel or the circumstances in which a solicitor or counsel may refuse or give up a case or entrust it to another. … (10) Notwithstanding subsection (1) above, a legal representative who has been selected to act for a person under that subsection may himself select to act for that person, as the legal representative’s agent, any other legal representative who is not for the time being excluded from selection.” 32.– (1) Subject to the provisions of this section, a person entitled to receive advice or assistance or representation may select the legal representative to advise, assist or act for him from among the legal representatives willing to provide advice, assistance or representation under this Act. … (6) The selection by or assignment to a person of a legal representative shall not prejudice the law and practice relating to the conduct of proceedings by a solicitor or counsel or the circumstances in which a solicitor or counsel may refuse or give up a case or entrust it to another. …

[23]It followed that the fundamental contractual relationship between the solicitor and the assisted person remained unaltered. This was made clear by section 31(1) of the Act which provided that:

“31. – (1) Except as expressly provided by this Act or regulations under it- (a) the fact that the services of the legal representative are given under this Act shall not affect the relationship between or rights of a legal representative and client or any privilege arising out of such relationship; and (b) the rights conferred by this Act on a person receiving advice, assistance or representation under it shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of the court or tribunal is normally exercised.”

Furthermore, for the purposes of any determination of the costs of a legally assisted person pursuant to an order for costs or to an agreement for the payment of costs in his favour, the services provided by the assisted person’s legal representative were to be treated as having been provided otherwise than under the Act (section 31(2)). (a) the fact that the services of the legal representative are given under this Act shall not affect the relationship between or rights of a legal representative and client or any privilege arising out of such relationship; and (b) the rights conferred by this Act on a person receiving advice, assistance or representation under it shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of the court or tribunal is normally exercised.”

[24]The principal way in which the contractual relationship between the legal representative and his client was altered by the grant of legal aid was that the assisted person would not be required to pay his legal representative any charge or fee save for any contribution provided for in the Regulations (section 9(5)). Similarly, the legal representative was not entitled to take any payment in respect of that representation other than as paid by the LSC or as authorised by the Act or by regulations under it (section 31(3)).

[25]Representation by a barrister. A solicitor acting for a client in a legal aid case for which a certificate had been issued could, in turn, instruct a barrister but only where that instruction was authorised by the statutory scheme, the terms of the certificate or from the LSC where express prior approval was required from the it. When a barrister was instructed in conformity with these requirements, that barrister had exactly the same relationship with both his client and his instructing solicitor as he or she would have had had the instructions been given in a privately funded matter.

[26]A barrister instructed under the representation scheme had to be instructed by a solicitor to whom a legal aid certificate had been granted which permitted those instructions. A solicitor was entitled to instruct a barrister when he or she considered that the proper conduct of the proceedings required this unless the LSC’s prior authority was required by the certificate or the Regulations and had already been obtained. A solicitor was required to send a barrister a copy of the certificate and any authority that had been issued to incur the costs when instructing that barrister (regulation 59). (2) PoA

[27]The PoA scheme. The Regulations provided the framework for ascertaining what a solicitor or a barrister was entitled to be paid for undertaking work under a certificate and also provided for payments to be made on account of the overall sum that was finally determined as being payable for a legal representative. The Regulations must be considered and applied in their statutory context, namely to provide the means whereby representation could be provided and paid for in accordance with the Act. Within that overall context, the payment on account provisions must be considered as providing for payments to legal representatives on account of fees that would be finally determined and become payable from the fund.

[28]The regulations provided that payment on account could be applied for as follows :

“Payment on account 100. – A solicitor acting for an assisted person under a certificate to which this regulation applies may submit a claim to the Commission on a form approved by the Commission for the payment of sums on account of profit costs incurred in connection with the proceedings to which the certificate relates. (2) Counsel instructed on behalf of a client under a certificate to which this regulation applies may submit a claim to the Commission on a form approved by the Commission for the payment of sums on account of his fees for work done in connection with the proceedings to which the certificate relates. (3) A payment may only be made under paragraph … (2) when- (a) a period of 12 months has elapsed since the date on which the certificate was issued; or (b) further periods of 12 months or 24 months have elapsed since that date. (4) A claim may only be made under paragraph … (2) within the period of 2 months before to 4 months after any period specified in paragraph (3). (5) The maximum payment to be made for each claim under paragraph (1) or (2) in any one financial year shall be: for the financial year 1993/94 62% for the financial year 1994/95 70% for the financial year 1995/96 and thereafter 75% (6) Where a solicitor’s retainer has been determined and another solicitor (who is not a member of the same firm) is acting on behalf of the assisted person, the Costs Committee The relevant committee of the LSC. may authorise payment of a sum on account of the original solicitor’s costs where it appears unlikely that the costs will be determined by way of a detailed assessment within six months of the date on which the retainer was determined. (7) The making of a payment under this regulation shall not release a solicitor from any obligation under these Regulations to submit his costs and counsel’s fees for detailed assessment or assessment under regulation 105 on conclusion of the case. (8) Where, after detailed assessment or assessment under regulation 105, payments made under this regulation are found to exceed the final costs of the case, the solicitor or counsel (if any) shall, on demand, repay the balance due to the fund and, where the total costs exceed any payments made under this regulation, the balance shall be paid from the fund. (9) Claims for payments on account under regulation 100(1), (2) or (6) or regulation 101(b) shall be made at prescribed rates where such rates where such rates are prescribed for solicitors or counsel, as the case may be, in (a) the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994; or (b) the Legal Aid in Family Proceedings (Remuneration) Regulations 1991. Payment on account of disbursement, in cases of hardship etc. 101. – (1) Without prejudice to regulation 100, a solicitor acting for a client may apply to the Costs Committee for the payment of a sum on account of (a) disbursements incurred or about to be incurred in connection with the proceedings to which the certificate relates; (b) profit costs or counsel’s fees where the proceedings to which the certificate relates have continued for more than 12 months and it appears unlikely that an order for detailed assessment will be made within the next 12 months and delay in the detailed assessment of those costs or fees will cause hardship to the solicitor or counsel. (1A) A solicitor who has acted for a client may make an application under paragraph 1(a) notwithstanding that the proceedings to which the certificate related have concluded and that the certificate has been revoked or discharged. (a) a period of 12 months has elapsed since the date on which the certificate was issued; or (b) further periods of 12 months or 24 months have elapsed since that date. for the financial year 1993/94 62% for the financial year 1994/95 70% for the financial year 1995/96 and thereafter 75% (a) the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994; or (b) the Legal Aid in Family Proceedings (Remuneration) Regulations 1991. (a) disbursements incurred or about to be incurred in connection with the proceedings to which the certificate relates; (b) profit costs or counsel’s fees where the proceedings to which the certificate relates have continued for more than 12 months and it appears unlikely that an order for detailed assessment will be made within the next 12 months and delay in the detailed assessment of those costs or fees will cause hardship to the solicitor or counsel. (2). Without prejudice to regulation 100, where- (a) the proceedings to which the certificate related have concluded or the solicitor is otherwise entitled to have his costs determined by way of detailed assessment; and (b) counsel acting for the assisted person has not received payment in respect of his fees for at least six months since the event which gave rise to detailed assessment, Counsel may apply to the Costs Committee for payment of 75 per cent of the amount claimed on account of his fees for work done in connection with the proceedings to which the certificate related.”

[29]It followed that a barrister could obtain a PoA for fees earned in an individual case covered by a certificate following a PoA application made under regulation 100(6). In two further somewhat unusual situations, a PoA could be obtained. These were, firstly, an instructing solicitor’s hardship application under regulation 101(1)(b) and, secondly, where there had been a six-month period of non-payment following an event that had given rise to an entitlement to a detailed assessment.

[30]PoA application. The LSC had approved forms that were to be used for a barrister’s PoA application and these were changed for the financial year 1997/98 from a CLA28A to a CLAIM4 form. It was no longer possible for the parties to obtain a copy of either version of these forms and no copy of any of AH’s PoA applications had been retained or available from any source. The evidence suggested that these forms would have provided no more detail than the name of the barrister, the certificate number, the case name and the sum claimed by the barrister and would have been accompanied by a copy of the relevant fee note setting out the date on which the work was carried out and the fee being claimed.

[31]Although regulation 100(9) required the claim to be made at such rates as were prescribed for solicitors or counsel in the Legal Aid in Civil Proceedings (Remuneration) Regulations 1994, these rates were confined to the hourly rates that a solicitor was entitled to use in his remuneration claim and there were no prescribed rates provided for any work undertaken by a barrister or for advocacy work undertaken by a solicitor. Thus, by necessary implication but not by any express requirement, any PoA application by or on behalf of a barrister was to be made by reference to what the barrister or his fees clerk was proposing to claim in the fee notes that would be submitted for detailed taxation at the conclusion of the case. In other words, again by necessary implication, the application was to be based on a reasonable estimate of what the court would allow when undertaking a detailed assessment of the same work at the conclusion of the case. (3) Detailed assessmentand payments into and out of the Fund

[32]The payment scheme was directly linked to the system of court-based detailed assessment of costs provided for by the CPR which occurred at the conclusion of the case. Thus, CPR 47.1 provided that:

“The general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings but the court may order them to be assessed immediately.”

[33]The proceedings would be concluded when the court has finally determined the matters in issue in the claim, whether or not there was an appeal, on the making of an award of provisional damages or were there was no realistic prospect of the claim continuing (practice direction to CPR rule 47.1). Within three months of the conclusion of the case, the solicitor was to commence detailed assessment proceedings (CPR rule 47.7).

[34]A detailed assessment had to be preceded by an order of the court. This requirement of the CPR was supplemented by regulation 107 which provided that: 107.-(1) The costs of proceedings to which an assisted person is a party shall be taxed in accordance with any direction or order given or made in the proceedings irrespective of the interest (if any) of the assisted person in the assessment; … (3) Where in any proceedings to which a client is a party-(a) judgment is signed in default, the judgment shall include a direction that the costs of any client shall be determined by way of detailed assessment;

(b) the court gives judgment or makes a final decree or order in the proceedings, the judgment, decree or order shall include a direction (in addition to any other direction as to detailed assessment) that the costs of any client shall be determined by way of detailed assessment under regulation 107A(2);

(c) the claimant accepts money paid into court, the costs of any client shall be determined by way of detailed assessment under regulation 107A(2). (4) Where in any proceedings to which a client or a former client is a party and- (a) the proceedings are, or have been, brought to an end without a directions having been given, whether under paragraph (3) or otherwise, as to the client’s costs being determined by way of detailed assessment; or (b) a judgment or order in favour of an opposing party, which includes a direction that the client’s costs be so determined by way of detailed assessment, has not been drawn up or, as the case may be, entered by him; or (c) a retainer is determined under [the appropriate regulation] in such circumstances as to require a detailed assessment in accordance with the provisions of these Regulations; the costs of that person shall be assessed on the standard basis on the production of a copy of the notice of discharge or revocation of the certificate at the appropriate court office.

[35]The Regulations provided that the detailed assessment of the costs of an assisted person that were, or might be paid out of the fund were to be determined on the same standard basis as was applicable for private-client civil proceedings subject to the Regulations concerned with legal aid assessments. These Regulations did not cover or extend to the assessment of a barrister’s fees.

[36]The bill of costs to be submitted for detailed assessment was drawn up by the assisted person’s solicitor and, as a matter of professional duty, it was to include all fees claimed by the barrister. As a matter of practice, the solicitor should seek an up to date fee note from the barrister immediately prior to preparing and submitting the bill. The Regulations contained an important safeguard for barristers in regulation 112. which provided that, once the bill had been subject to detailed assessment, if any fee claimed by the barrister had been reduced or disallowed on that assessment, the solicitor was, within seven days after the detailed assessment or provisional detailed assessment, to notify the barrister in writing of that reduction or disallowance. The solicitor was also to endorse the bill of costs with the date on which such notice was given or that no such notice was necessary. Where the bill was endorsed with the date of notice, the costs officer was not to issue the certificate or allocatur, which triggered the release of money from the fund, until fourteen days had elapsed from that endorsed date.

[37]The purpose of this regulation was to allow a barrister whose fees had been reduced or disallowed the opportunity to challenge that adverse decision relating to his or her fees by applying through the solicitor for authority to carry in objections to the assessment and, again through the solicitor, to have those objections determined (regulation 116). (4) LSC’s powers of monitoring and control

[38]The LSC was provided with extensive powers to enable effective monitoring and control of claims and expenditure to take place. This could be achieved in three cumulative ways:(1) Duty to report. The Regulations required the assisted person’s solicitor to provide to the LSC regarding the progress and disposal of the proceedings to which the certificate related as the LSC might from time to time require (regulation 70(1)). That regulation permitted, indeed envisaged, that the LSC would seek information about any unusual, unexpected or apparently unusually large PoA application and about the progress of a case where there had been no movement or information for a significant length of time. The Regulations required the solicitor to provide a report even if this was not required or sought where the assisted person declined to accept a reasonable offer of settlement or when a sum was paid into court (regulation 70(a)), if the assisted person died or became bankrupt (regulation 71) and, most significantly, upon the completion of the case or if he was unable for any reason to complete the work (regulation 72).

(2) Power to discharge or revoke a certificate. The LSC had the power to revoke or discharge a certificate in defined circumstances including those that arose if the assisted person had failed to provide information or documents when required to do so (regulation 79), had been abusive in the conduct of the assisted proceedings (regulation 78) or where the proceedings had been disposed of or completed (regulation 80). As soon as the proceedings were revoked or discharged, the solicitor’s and barrister’s retainers were determined (regulation 83) and the costs were to be submitted for a detailed assessment (regulation 84).

(3) Power to control the timing and initiation of a detailed assessment. The solicitor was required to submit his costs and the assisted person’s barrister’s fees for detailed assessment on conclusion of the case (regulation 100(7)). In any case where the solicitor failed to comply with this regulation, the LSC could, on notice, notify the solicitor that the certificate would be discharged if a detailed assessment that should have commenced had not been commenced and, having discharged the certificate, the costs should be determined by way of detailed assessment (regulation 107) and the LSC could authorise the making of an application for detailed assessment (regulation 108). (5) The LSC’s operation of the system

[39]The individual certificates were issued and administered by area offices based on the area in which the assisted person resided. Thus, AH’s 81 separate matters were administered in a number of different offices. CIS was introduced in 1997 and all data from the LSC’s previous systems were placed onto this system. In conformity with advice received from the Public Accounts Committee at the time the CIS system was introduced, the LSC only retained documentation relating to any certificate for three months after that documentation was generated since the relevant information from those documents was transferred onto the CIS. Since that information was confined to the value and date of each PoA and the date and size of each final detailed assessment, it is not any longer possible to ascertain other details about the work carried out or of the payments and assessments that were made. Similarly, AH no longer has any relevant paperwork relating to the certificates founding these proceedings. The information that is available has been obtained in a limited number of cases from the relevant case files that have been located by the LSC’s solicitors since this case was commenced because they were still retained in storage or archived by the firms of solicitors to whom that certificate was issued whilst it was current.

[40]It was clear from the evidence that the LSC, in the relevant years, did not undertake any significant amount of checking, monitoring or verification of sums being claimed under the PoA scheme or of the progress of work under a certificate. Furthermore, the LSC rarely called for progress reports. Invariably, the first that the LSC became aware that a case had been completed and a detailed assessment had been undertaken was when the solicitor forwarded the costs certificate with the appropriate claim form accompanied by the bill of costs as assessed by the court. A culture of delay had developed over the decades since 1948 when legal aid was introduced so that, in practice, bills of costs were not forwarded for assessment until long after the end of the permitted three-month period following the completion of the case or the discharge of the certificate. It is also clear that this complacency was sanctioned by the court assessment officers, being the costs judges in modern terminology who appear to have invariably extended time to allow the detailed assessment to take place out of time. Moreover, it would seem, from the fragmentary evidence still available, that in a significant number of cases where a barrister’s fees were reduced or disallowed, the solicitor did not inform the barrister that this had happened and did not endorse the bill that that notification had been sent, as was required by regulation 112. Once the LSC received a copy of the certificate and bill of costs accompanied by the appropriate claim form, a computer-generated arithmetical exercise was produced from the CIS by the relevant official which identified whether a net sum was due to, or should be paid by, the barrister in the light of all previous PoA and the total sum certified in favour of the barrister. This process was known within the LSC as recoupment since the programme had been written in a way in which all PoAs were notionally recouped and replaced by the net sum due to or payable by the barrister.

[41]The LSC operated a running account for each barrister for all certificates issued in that barrister’s name. Thus, in practice, an account was sent twice monthly to each barrister’s chambers address setting out all payments made in the preceding fortnight and all claims for the return of overpaid PoA and with a net total also shown. The payments to the barrister were paid directly into that barrister’s notified bank account using a BACS payment transfer. In AH’s case, it was only when her running account went into debit on 5 May 2000 that the LSC became consciously aware that excessive PoA applications were being made on AH’s behalf and that she was being overpaid to the extent that repayments were being sought under individual certificates. The records show that such repayment demands were made in eleven cases prior to May 2000 which were met by deductions from payments otherwise due to AH and that, in at least eight of these cases, the repayments were between £2,600 and £8,600. D. Regulation 100(8) Claims (1) The essential ingredients of a claim and any defence to a claim

[42]The essential ingredients of a claim by the LSC for the repayment by a barrister of overpaid PoAs are clearly set out in regulation 100(8). There must have been a detailed assessment or, in a case where the overall bill of costs is for a small sum, an assessment by the LSC, a finding that the payments on account exceed the final costs of the case and a demand to repay the balance due to the fund. The regulation is to be construed in its context. It is one of a large number of regulations concerned with the payment of fees and costs to legal representatives providing an assisted person with publicly funded representation under a legal aid certificate. The regulation itself was concerned with the necessary accounting that was required to regularise and finalise on account payments made during the progress of work undertaken under a particular certificate for a particular matter. These payments were to be made from the fund towards a final liability of the fund to make payments for that work. That final liability was to be determined by a process of detailed assessment by a court or an LSC official. This assessment process was in the nature of an expert valuation since it relied heavily on subjective, albeit informed, judgment as to the reasonable value of the work that had been undertaken. The overall assessment and payment process culminated with the issue of a costs certificate that certified the total amount due to the representatives representing the assisted person under that certificate. Other than the on account payments, the legal representatives were not entitled to any payment for their work on a particular matter unless and until the costs certificate had been issued.

[43]It follows that the essential ingredients of the scheme were that the LSC was a funder of representation and it played no further part in the representation of the assisted person. The relationship between the representatives involved and the assisted person was the same relationship that they would have had if the representation was privately funded save for any necessary adaptations necessitated by the publicly funded nature of the representation. The representatives entitlement was to be assessed and determined by an independent third party, usually the court through a costs judge and the legal representatives were to have the opportunity of being heard in that process prior to the final determination being made. The payments on account were to be the subject of a rough and ready self-assessment process which was protected by the limitations on recovery imposed by regulation 100, being a defined percentage of the estimated final recovery. Like any on account scheme, the sums paid on account would be subject to final checking and, if necessary, re-assessment when the final accounting process took place which would be followed by any necessary adjustment and balancing payment to ensure that the final overall payment to each representative equalled and did not exceed their finally assessed and certified entitlement.

[44]It follows that the costs certificate was determinative of a legal representatives entitlement and, like any third party certification exercise, it was conclusive of a representative’s entitlement save in cases where the certificate was issued in excess of jurisdiction, was tainted by procedural error or was clearly and obviously perverse. It follows that if a regulation 100(8) claim is made, a barrister’s defence would be confined to asserting that no costs certificate had been issued following a final assessment of costs, that the certificate was issued following procedural error, particularly where the barrister had been prevented from claiming his full claim or from making appropriate representations against a proposed reduction or disallowance, that the certificate had resulted from jurisdictional error or that it was clearly perverse, for example that it certified that a sum was due from a barrister who could show that he or she had been wrongly named as the barrister undertaking the services in question. Finally, the barrister could claim that the claim was statute-barred.

[45]Work could only be assessed for payment from the fund if it had been carried out during the currency of the certificate, that is from the date of the certificate to the date that work was concluded under the certificate. That date was when the case was concluded, at which point authority to undertake funded work under the certificate was automatically terminated. At that point, the solicitor could submit the bill for detailed assessment. At the point of time when the assessment was completed and enshrined in a costs certificate, the finding was made which showed whether the payments on account had or had not exceeded the total costs.

[46]Although the LSC provided standard forms which solicitors were to use to claim costs following a final assessment, which had to be submitted to the LSC accompanied by a copy of the bill of costs and the costs certificate, the submission of one of these forms was not a defined part of the assessment and payment process. However, a repayment claim could only be made by the LSC:

“on demand” since the barrister’s obligation to repay was stated to be triggered “on demand”

. In the context of a provision which is purely administrative and which provides for the procedure to be followed when seeking repayment of an entitlement that had already been triggered by the costs certificate, the requirement to repay on demand means no more than that the LSC was entitled to rely exclusively on the evidence of the contents of the costs certificate in seeking repayment but could only do so if the repayment obligation evidenced by that certificate was formally demanded. That demand did not have to precede the issuing of proceedings since a properly particularised claim form is itself a demand. In other words, the demand was needed so as to identify the details of the overpayment sufficiently, whether by reference to the costs certificate, final assessment, legal aid certificate or matter name that the LSC was relying on since it was the final assessment which triggered the requirement for repayment. (2) Analysis of claims and possible defences

[47]It is obviously very difficult, if not impossible, for any of the possible defences to be advanced if the only record of payments made and of the barrister’s payment entitlement are those contained in the CIS data base. In this case, after an extensive exercise in seeking documents from the original solicitors’ archives, the LSC’s solicitors were able to provide some additional documentation but there remained many gaps. It was not possible for AH to identify, from the documents that were obtained:(1) How any application for a PoA had been calculated in both work content and value since no copies of any POA application and very few interim fee notes were available.

(2) The final bill of costs was not available save in two cases.

(3) The dates on which work was concluded, the bill of costs was submitted for assessment and the bill was finally assessed and copies of the costs certificates were only available in a few cases and a complete set of these dates and documents were not available in any case.

(4) Which particular fees being claimed in any case were reduced or disallowed and why that occurred were not known.

(5) It was not possible to ascertain whether there had been any claim made for AH’s cases in at least seven cases where the claim was based on a nil entitlement and the repayment of the entire PoA.

(6) It was not possible to ascertain whether AH had, save in two cases, been notified of a reduction or disallowance of her fees since the bill of costs was not available to be inspected to see whether it had been endorsed with the requisite endorsement required by regulation 112.

[48]What can be seen from the currently available evidence is that most, if not all, of the claims could well have been successfully defended on at least one of the following grounds albeit that the evidence was not available to satisfy the many of these defences in most of the claims.

[49]No final assessment. In claim 1, following the complex and uncertain history of work undertaken under this certificate, during which fees were apparently paid to AH’s solicitor for her fees which were not paid on to her, AH submitted an extra-statutory claim for fees, based on that non-payment. The LSC then invited AH to resubmit her claim on a CLAIM 1 form which was inappropriate for her particular claim but which was used for the convenience of, and at the request of, the LSC. AH then submitted a further PoA application which was paid. Finally, the LSC purported to assess AH’s entire fee entitlement and then made a regulation 100(8) claim for repayment of £17,258.69 having assessed her fees at £917.09. Whatever overpayment had occurred and basis of repayment had arisen, this was not a case where a final assessment or a statutory basis for an LSC assessment under regulation 105 had occurred so that no regulation 100(8) entitlement had arisen.

[50]In claims 3 and 5, the LSC contended that the cases had been settled and final payment of AH’s fees had been made by the solicitor directly to her so that AH ended up overpaid. These contentions may be factually correct but could not be investigated or proved given the absence of documents and their surfacing ten years after any overpayment had occurred. They do not appear to be supported by such documents as are now available although they do suggest that AH was paid, at least in part, directly by the solicitors. In such cases, the regulations still require, and provide the machinery for obtaining, a court final assessment and this was not sought or required by the LSC once it became aware of these possible overpayments. Thus, whatever the merits of the LSC’s claims, they are not ones that may be pursued using regulation 100(8).

[51]In many of the claims, there was evidence of procedural irregularity. This evidence was sufficient to show that AH’s defences to these claims had been severely hampered but insufficient to enable there to have been a full or fair determination of the full nature, validity and extent of such defences.

[52]Procedural irregularity. In eight cases, AH’s fees were assessed as nil during the final assessment process although PoA had been claimed and were now being reclaimed in full. This suggests that procedural irregularity had occurred although, in one case, claim 8, correspondence was provided which suggested that the bill of costs was submitted for assessment with no fees claim included for AH’s fees due to a repeated failure by AH’s fees clerk to provide fee notes. What is not clear, even there, is why interim fee notes relating to the payments on account, were not added to the costs claim. Moreover, AH should have been notified of the disallowance of her fees in each of these cases since it would have been clear during the assessment that counsel had been instructed but that no fees claim was allowed.

[53]It is for such cases in particular that the regulation 112 procedure was provided. That required the solicitor to notify the barrister, through chambers and the fees clerk, of a reduction or disallowance and to apply for permission to carry in objections. It would be a ground for defending any claim under regulation 100(8) that the barrister was not provided with the opportunity to invoke that procedure and for the court to determine whether, on a balance of probabilities, the barrister had shown that he or she would have used the procedure successfully to reduce or eliminate the overpayment. Although it is to be inferred from the evidence that is available that AH was not notified in this way, it is not possible to decide whether that was the case since all but two of the bills of costs are not available. It is no longer possible for a court to determine whether, and if so in which cases, this procedural defence would have enabled AH to have successfully reduced or eliminated the relevant claims.

[54]Gross error amounting to perversity. There was at least some evidence to support this ground of defence in a number of claims. For example, in claim 10, despite a case history spanning nearly ten years and the disclosure of a file of over one hundred pages of documents from the files of the third of three firms of solicitors who had been involved in this case, which related to the entire history of the action, there was no reference to AH at any stage on any of these documents. This provides prima facie evidence that AH had been erroneously debited with a claim for overpaid payments on account, possibly because she had been wrongly credited with these years earlier. This is one of the many claims which could not be fairly tried given the paucity of documents and the passage of time that had elapsed between the events in question and the trial.

[55]No notification. The LSC contended that it had duly notified AH of each claim through its BACS receipts and demands which it sent to AH’s chambers. LSC proved that these documents were sent fortnightly to AH’s chambers, albeit that AH never saw any of them since she left all matters concerned with her fee collection to her fees clerk. However, these documents are clearly documents that made on demand claims for repayment under regulation 100(8). Each statement that contained a demand for repayment by AH, as opposed to one which evidenced a repayment having been made by way of a deduction from other fees otherwise due to her, was entitled “Payment Demand” and a line entry on the statement showed the sum being demanded with details of the case and the PoA that had been requested originally which it was necessary for the barrister to repay. It would have been preferable for the statement also to identify the costs certificate giving rise to the demand but that omission is not sufficient to nullify the demand which is not, in any event, a condition precedent to LSC’s entitlement to sue. The absence of a costs certificate would, of course, have been a separate ground of defence.

[56]Nature of and reasons for overclaiming. When all possible allowance has been made for the difficulties of proof and the lengthy delays that occurred in this case, it is undeniable that the PoA applications submitted on behalf of AH contained an unacceptably large number of claims where the sum being claimed was unacceptably excessive. It was, however, possible to ascertain what went wrong. The evidence suggested that there was no deliberate or conscious attempt to defraud the LSC by making repeated excessive PoA claims in circumstances where it would have been known that the LSC did not undertake any effective checks on the size and levels of such claims. Instead, AH’s fees clerk in the relevant period between 1994 and 2000 was making claims that were based on hourly rates and amounts of time greatly in excess of those recoverable on a detailed assessment. This difficulty arose for two broad reasons.

[57]Firstly, AH’s fees clerk had had no experience of fees collection before she was taken on by AH in about 1975. She had no training in clerking on being taken on and AH provided her with her hourly charging rate to be used in all cases whether publicly or privately funded. The fees clerk appears to have followed her instructions but did not get any significant feed back as to the unreasonableness of her charging regime since the long delays in obtaining final assessments meant that by the time AH ceased to accept instructions in early 1999, there had been too few demands for repayment for it to have become clear that AH was overcharging in her legal aid matters.

[58]Secondly, AH was obviously very slow and meticulous in her work, often taking several days to prepare a brief or draft an opinion and she also required all work to be charged for. It is clear that, for example, she often held lengthy telephone conversations with her instructing solicitor which she kept inadequate notes about and which were charged down or disallowed on the basis that it was not reasonable to charge the opposing party or the fund for those calls. Again, there was insufficient feed back from the history of final assessments for the fees clerk to learn from experience before AH effectively retired from accepting new instructions.

[59]There is no way of ascertaining the relative proportion of the claim that should be attributed to overclaiming in this way compared to the proportions correctly attributable to procedural error, which would be largely the responsibility of the solicitors involved, and jurisdictional error, which would be the responsibility of the LSC save that each broad category of responsibility was significant. (3) Limitation

[60]AH’s principal defence was that these claims were barred by limitation. It was accepted that they were all subject to section 9 of the Limitation Act 1980 which reads:

“9.- Time limit for actions for sums recoverable by statute. (1) An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

In this case, there were two alternative dates contended for. On behalf of the LSC, it was contended that the right to repayment accrued on the date that the LSC was notified of the final assessment and received the solicitor’s claim for costs. On behalf of AH, it was contended that that right accrued on the date that the matter was concluded, being the date on which a final bill of costs could first be lodged for final assessment. Given the lengthy delays in all these cases, in common with the leisurely regime then operating for all legal aid administration, the difference between these two starting points were, in some of the claims, as long as six years or even longer. (1) An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

[61]AH’s contentions. On behalf of AH, Ms Clark in a series of short but cogent submissions, relied on principle, an analysis of the structure of the payment scheme provided for by the Regulations and on three Court of Appeal authorities. Her argument may be expressed in three propositions:(1) It is clear from the structure of the payment and repayment scheme, that the right to reclaim the overpaid payments on account accrues at the same time as the right to claim and be paid the finally determined amount due for the same work.

(2) A barrister’s entitlement to fees accrues as an entire sum at the conclusion of the case or defined piece of work being undertaken on behalf of the client. This principle is equally applicable for publicly funded as for private-client work.

(3) The cause of action accrues at the date of the conclusion of the case even though the precise amount of fees to be assessed is not known at that stage and will not be known for a further period of time whilst the necessary assessment process is undertaken. Ms Clark contended that these three propositions are both shaped and supported by the decisions of the Court of Appeal in Coburn v Colledge

[1897] 1 QB 702

, CA. ; Hillingdon London Borough Council v ARC

[1999] Ch 139

, CA. and LSC v Rasool

[2008] 3 All ER 381

, CA. .

[62]LSC’s contentions. On behalf of the LSC, Ms Rushton, in equally well-structured submissions, relied principally on pragmatism whilst seeking to distinguish all three of the authorities relied on by Ms Clark. Her argument may also be expressed in three propositions:(1) The LSC cannot know that it has a right to claim repayment unless and until the solicitor responsible for obtaining a final assessment has both obtained a costs certificate and sent it to the LSC.

(2) Only then can the LSC determine that an overpayment has occurred and make a demand for payment. Thus, the LSC first being made aware of the details of the final assessment and its subsequent determination of an overpayment are essential ingredients in the cause of action which cannot, therefore, accrue until both steps have occurred.

(3) Rasool’s case is different and is no authority for the date for the accrual of a regulation 100(8) repayment claim. It is concerned with the requirement to repay fees to the LSC imposed on an assisted party when his certificate is revoked under regulation 86(1).

(4) Discussion - Limitation

[63]The repayment being claimed under regulation 100(8) is stated to be: the balance once the payments on account that exceed the final costs of the case have been deducted from the final costs of the case. Thus, the payments that are being deducted were, and always remained payments “on account” of the final costs. In accordance with both principle and the expectation of all parties, if an excessive on account payment was made, the excess is refundable. It would be surprising, if not irrational, for the date from which the excess becomes refundable is later than the date that the balance becomes payable to the solicitor. The two sums are part and parcel of a further sum, the final costs of the case, and all three sums are determined or are certainly determinable in the same exercise.

[64]As I have sought to demonstrate already, the Regulations provide that the process of interim payment on account, the determination of the date on which the case is concluded, the final assessment and the final payment are provided for each certificate on a separate case by case basis. It is clear from Coburn’s case that a solicitor’s retainer is an entire contract and that, for litigation matters, that contract ceases on the completion of a particular case. At that moment, there was in existence “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. Ibid., page 706. ” This was so, even though the precise entitlement of the solicitor remained for ascertainment by following the delivery of a bill of costs. Until that delivery had occurred, the solicitor had a cause of action but he could not “maintain” it.

[65]That case was the foundation for the establishment of a wider principle in a series of cases starting with Central Electricity Generating Board v Halifax Corporation

[1962] 3 All ER 915

, HL. and culminating in the Hillingdon London BC case in which Norse LJ succinctly stated the principle as follows:

“it is established by authority that a cause of action for a sum recoverable by virtue of an enactment “accrues” notwithstanding that it remains to be quantified and, further, the quantification may have to be made by a tribunal other than a court of law.”

Ibid., page 157.

[66]These cases were relied on in Rasool, a case where the LSC had revoked the assisted person’s certificate and claimed from the assisted person the costs paid or payable to the legal representatives. That claim was made under regulation 86(1) permitting recovery of “the costs paid or payable” to the legal representatives. Those costs had first to be assessed. The Court of Appeal held that time started to run for the claim for costs when the certificate was revoked even though costs that were payable had still to be determined by a detailed assessment. This was because the Act and the Regulations should be construed so far as possible in a manner that was compatible with private practice, that a solicitor’s cause of action for recovery of costs accrued at the date of completion of the work rather than from the date of assessment and that the only facts needed to be proved to establish a cause of action under regulation 86(1) were that work had been done under a certificate but the certificate had been revoked.

[67]When analysed in this way, it can be seen that Rasool is on all fours with this case. Work has been done under a certificate, that certificate ceased to have operative effect and was discharged, the sums due to be repaid to the LSC immediately became payable since the regulations should so far as possible be construed compatibly with private client work and there was no necessity, to complete the cause of action, for the final costs to be assessed.

[68]The LSC’s answer to these submissions is to stress that the timing of the claim for a final payment, as with the lodging of a bill of costs for assessment, is entirely in the hands of the solicitor and, until the claim for a final payment is received, the LSC has no means of knowing that a repayment claim is available to it. Thus, knowledge of the claim by the LSC is an essential ingredient in the cause of action. However, these submissions take no account of the fact that the Regulations gave the LSC full powers to obtain all necessary information and also provided strict time limits for the assessment process. What regrettably occurred throughout the 1990s was a culture of acquiescence in which the LSC did not seek regular reports on stale cases, did not exercise its powers of discharge when cases went to sleep and were not reported on, did not ensure that bills that were lodged for taxation outside the three month period permitted by the RSC were subject to penalties so as to discourage such delays and did not require solicitors who delayed in lodging bills of costs to lodge them under threat of discharge and consequent non-payment. In any event, it is not possible to identify the ingredients of the relevant cause of action by reference to the relaxed way in which the regulations were implemented. (5) Conclusion - claims

[69]All but two of the claims were barred by limitation since, on the balance of probabilities, the claims were concluded prior to 1 February 2000. The two that were not barred by limitation failed on procedural grounds as follows:(1) Claim 5 – no detailed assessment and procedural irregularity since AH not notified that her fees had been assessed as nil.

(2) Claim 10 – procedural irregularity since AH not notified that her fees had been assessed as nil. Many of the other claims also failed on procedural and jurisdictional grounds as detailed in the schedule. E. Restitution Claims

[70]The LSC seeks, in the alternative to its claims based on regulation 100(8), to claim back the perceived excessive payments as having been paid under a mistake or as having been made so as to unjustly enrich AH. She, in reply, contends that the statutory claim under regulation 100(8) is the sole and exclusive basis upon which any overpaid payments on account may be reclaimed.

[71]The circumstances in which a statutory remedy provided to a public body is to be construed as providing the sole basis of recovery to the exclusion of any parallel common law or equitable remedy have expanded in recent times. A particularly apposite analogous case had recently been decided by the Court of Appeal when this case was tried, Child Poverty Action Group v Secretary of State for Work and Pensions [2009]EWCA Civ 1058, CA. . This case was particularly relied on by AH and was dismissed as being an extreme case by the LSC. It came to my attention that the case was to be argued in the Supreme Court and that judgment would be handed down soon afterwards and I have delayed handing down this judgment until the decision had been handed down. The Supreme Court has affirmed the Court of Appeal’s judgment

[2010] UKSC 54

, HL. . Since the parties have not had the opportunity to raise submissions on the Supreme Court’s judgments and since those judgments do not affect the way that the relevant statutory provisions should be analysed in order to determine whether a parallel common law claim exists alongside the statutory claim, I will not refer further to the Supreme Court’s judgments.

[72]My analysis of the authorities cited in argument suggests that these are the operable principles that should be applied in order to determine whether a parallel claim survives or co-exists with the statutory one:(1) The question as to whether the statutory remedy is exclusive or is complementary to other remedies is to be answered by the provisions of the statutory provisions giving rise to the statutory remedy.

(2) Where no clear answer is provided by the statutory provisions, they must be analysed in their statutory context to determine whether it is the intention of the legislature or the implied and necessary meaning of the provisions that they are to provide an exclusive remedy.

(3) In ascertaining the meaning to be given to, and the implication to be derived from, the legislation, attention should be given to any preceding legislation which the current legislation has replaced or amended in providing the statutory remedy; to the statutory code in its entirety in which the remedy finds a place; to any obvious problems or difficulties that would arise if both types of remedy exist together and to whether there are situations in which the abolition of a common law remedy as a result of the introduction of the statutory remedy would be left without a remedy which would be available if the common law remedy remained Woolwich Equitable Building Society v Inland Revenue Commissioners

[1993] AC 70

, HL; Marcic v Thames Water Utilities Ltd

[2004] 2AC 42

, HL; Autologic Holdings plc v Inland Revenue Commissioners

[2006] 1 AC 118

, HL and Revenue and Customs Commissioners v Total Network SL

[2008] 1 AC 1174

; Child Poverty Action Group in the Court of Appeal and the Supreme Court. .

[73]I conclude that the exclusive remedy available to the LSC is that provided for by regulation 100(8) for these reasons:(1) The PoA scheme was introduced for the first time into the legal aid scheme when it appeared in the Regulations which, when introduced, replaced and repealed the earlier 1980 Legal Aid (General) Regulations 1980. Until the PoA scheme was introduced, there was no means whereby a representative could obtain payment on account or payment prior to the conclusion of a case so there was no comparable common law remedy already operating and available in relation to payments on account towards legal aid payments.

(2) The Regulations provide an exhaustive code for the payment of representatives, for the assessment of payment, for the application and payment of payments on account and for the necessary accounting and payment or repayment of monies in both directions when the final payment entitlement is ascertained.

(3) There is no situation in which a practitioner can be left holding a PoA which he or she is not entitled to. The examples cited by the LSC as being possible situations of that kind are all capable of leading to a regulation 100(8) repayment demand if the LSC ensured, as it could, that the Regulations were operated fully and in accordance with the timetable provided for.

(4) Anomalies would arise if a claim in restitution could exist alongside a regulation 100(8) claim. By way of example, it would not be clear how the principle of change of position would operate if the claim in restitution survived since that principle cannot apply to the regulation 100(8) claim yet, in principle, it should apply to a claim in restitution.

(5) It is not clear what the LSC would need to show to succeed in a claim in restitution. For example, what would the nature of the mistake have to be? If the mistake was that of the legal representative in formulating the claim, it would be difficult to show that an overpayment had resulted from a mistake given the margin of acceptable error there is in relation to an assessed claim which is inevitably based on subjective judgment and a very imperfect knowledge at the date of the claim as to what the claim should be assessed at. If the mistake was that of the LSC, it would be difficult to show that they paid an assessed application for a PoA by mistake given the difficulties of showing that a mistake had been made.

[74]I also conclude that no restitutionary claim can arise on the basis of the claims pleaded in this case. Such a claim could only arise in two situations: when a PoA claim is submitted or when it is clear that an overpayment has occurred. In the first case, LSC has not pleaded facts for any PoA application which give rise to an actual or possible mistake, unjust enrichment, misrepresentation or dishonest act leading to the PoA susceptible to a claim for its return on restitutionary grounds. In the second case, the overpayment can either be reclaimed under the procedure provided for by the Regulations, in which case there is no need for a restitutionary claim in addition, or it cannot be reclaimed at all since there has been no final assessment and costs certificate. In such circumstances, the LSC is not entitled to a repayment unless and until it procures the issue of a costs certificate which provides for such a repayment. If such a certificate is procured, the overpayment can and must be reclaimed through the procedure provided for by the Regulations.

[75]If such a claim can be brought in this case, it would now be barred by laches or by statute. The statutory limitation period would either run from the date of the PoA application or from the date that the work under the certificate had been completed. Any period of laches would start from the date that the claim would have been barred by limitation if such a defence had been available. In any such situation, these claims would now be barred.

F. Abuse of Process and Public Law Defences

[76]Introduction. AH raised two related defences to these claims in their entirety. These were:(1) It was an abuse of process for the LSC to pursue these claims given the delays that had developed from the respective dates on which each case had been concluded to the date recoupment was first made or sought, from those dates until this action was commenced in 2006 and from that date until the trial of the action in 2010. It was also abusive since AH had no documents and the LSC had only limited documents available and it was not possible, as demonstrated by an analysis of the available facts of each claim, for her to fairly investigate each discrete claim and then to meet it and to mount and present the defences that were available to her. This unfairness was particularly highlighted by the investigations that the LSC carried out in 2007 and 2008 when its solicitors contacted many of the firms of solicitors who had instructed AH in the relevant claims in order to obtain access to their historic files in those cases. This exercise, undertaken at considerable expense, failed to produce a complete set of relevant papers in any case, produced further paperwork in varying degrees of completeness in some of the cases and produced no further paperwork in other cases. Such historic archival trawls were not available to AH since she had no resources with which to carry them out. The overall effect of the delay, lack of documentation and inadequate resources had unfairly prejudiced her defence, had resulted in an inequality of arms in comparison to the resources available to the LSC and had led to considerable injustice as a result.

(2) The LSC had initiated and then had maintained the action in breach of its public law duty to deal with the legal aid fund and to administer the legal aid system fairly, reasonably and rationally. These breaches occurred because the LSC did not undertake, and had not shown that it had undertaken, appropriate risk and cost/benefit assessments in relation to the claim at any stage and had pursued the very stale claims against a retired practitioner in poor health and with limited resources where the prospects of success and of successful recovery were poor knowing that AH would be unable to investigate and defend them.

[77]AH relied on the well-known principles relating to abuse of process and its operation procedurally and as a substantive defence and on the decisions in Doherty v Birmingham CC

[2008] UKHL 57

, HL. and Shane Barber v London Borough of Croydon

[2010] EWCA Civ 5

. . As evidence in support of this reliance, AH prayed in aid two publications, one issued by the Law Society and one issued by the Bar Council, which highlighted the unfairness to the profession of the LSC’s practice, first noted in the mid-2000s, of pursuing recoupment claims of long-standing against both solicitors and barristers. Particular reliance was placed on these passages: (1). Un-recouped payments on account issued by the Law Society on 10 August 2006 “The Law Society continues to receive complaints from solicitors with regard to the LSC’s current recoupment exercise. There is widespread concern that the LSC is claiming recoupment in cases where it is not due in very old cases where solicitors no longer have case records., and therefore cannot provide the LSC with documentary proof and in cases where the LSC cannot provide sufficient information for the solicitors to identify their client and therefore locate their file. The Law Society is aware that similar problems have arisen in earlier recoupment exercises, and we have suggested to the LSC that it would be prudent for them and practitioners to consider procedural changes to avoid such problems in the future.” The paper then summarises the Law Society’s concerns in relation to recoupment claims in old cases, many of which mirror AH’s complaints about this claim. The paper then concludes: “Preliminary Law Society Proposals to the LSC The Law Society has made some preliminary proposals to the LSC to form the basis of discussions with them. Amnesty for cases older than six years We think it would be helpful for the LSC to acknowledge the potential unfairness of making recoupment claims in respect of very old cases, where the delay in doing so is likely to be a result of the LSC’s own maladministration and the basis for recoupment cannot be verified by reference to either LSC or solicitor paper files. In our view, the LSC should not pursue its claims in such cases, on the understanding that more effective procedures will in future be introduced by both the LSC and practitioners. This would apply to cases that are more than six years old.” (2). Payments on Account in Publicly Funded Cases issued by the Bar Council – undated AH’s counsel submitted that it was to be inferred that it was first issued at about the same time as the Law Society issued its Recoupment Guidance in August 2006. That inference is a reasonable one.

[78]“The LSC is currently conducting a review of payments on account outstanding on publicly funded cases (and particularly in older, dormant cases) where the conducting solicitor has not yet submitted a final report or final claim for costs. … There are some circumstances in which the conduct of a solicitor may impact upon counsel’s ability to realise his or her fee – if a solicitor fails to include the full amount of counsel’s fee in a final claim for example. Situations of this type will be dealt with on a case-by-case basis, taking account of the individual circumstances in each case, but the general approach of the LSC will be to ensure that counsel is not unfairly penalised by the conduct of the solicitor involved. … There are also circumstances where counsel can be disadvantaged by events over which he or she has no control – if a solicitor’s firm ceases to trade or is intervened for example. Again the LSC will deal with cases of this type individually, taking account of the individual circumstances in each case and the financial interests of the parties involved. In some circumstances fees may be payable to counsel, in which case a payment can be made.”

[79]There was no evidence adduced as to whether these concerns led to a change in practice with regard to recoupment claims but these two publications show that the problems of delay and lack of records engendered by recoupment claims were causing the profession considerable concern by 2006 and it was contended that these concerns provide further support for AH’s defences of abuse and unfairness, both of which should entitle her to a permanent stay or to judgment in her favour.

[80]The LSC contended that there had been no abuse. The delay was not of its making having arisen firstly by delays in obtaining final assessments and submitting the final costs certificates and then by AH in not answering any communication from itself. The absence of documentation did not disadvantage AH since the claims were based on final costs assessments by the court which were conclusive as to the sums payable to or recoupable from AH. The LSC also contended that the public law defence relied on was not available to AH since these claims were private law claims for repayment of wrongfully claimed and paid payments on account.

Conclusion – abuse and public law defence

[81]It is clear from my findings in relation to the individual claims that AH was severely disadvantaged by the stale nature of the claims coupled with an almost complete lack of relevant supporting documents and by her lack of resources to fund much of the necessary preparatory work needed to enable her to present her defence. It was only because her experienced counsel was willing and able to accept Pro Bono instructions to appear for her at the trial at very short notice that she was able to be fully and ably represented at the trial. It is also clear from a careful reading of the public law authorities relied on that the LSC was pursuing its public functions of administering the legal aid scheme and fund in initiating and continuing with these claims and that an unreasonable or unfair use of its powers for those purposes affords AH a defence to them. I therefore conclude that AH is entitled to judgment and to a dismissal of the LSC’s claims on both these additional grounds.

Post-trial assessment of costs

[82]A pro-bono costs order is appropriate in relation to counsel’s fees for the work involved in preparations for the trial and in representing AH at the trial. The sum assessed by me will be paid to the Bar Pro Bono Unit in accordance with section 194 of the Legal Services Act 2007. I am satisfied that the hourly rate and the number of hours contended for by AH, in reliance of her counsel’s fee notes and supporting explanation of the work undertaken and hourly rate contended for, are reasonable. I have therefore assessed the overall sum to be paid to the Bar Pro Bono Unit to be £41,000.

H. Conclusions

[83]All LSC’s claims fail and judgment should be entered for AH. HH Judge Anthony Thornton QC 90. Schedule of Claims SUMMARY OF NET SUM DUE UNDER EACH CERTIFICATE Certificate number Assisted person POA's Final bill (and Net sum due other credits) from Defendant 1 01/01/94/11302/N A MOOSA £1,722.84

£917.09

£17,258.69

£11,360.78

£5,092.16 2 12/01/97/19628/P SJ EDWARDS £3,833.44

£700.00

£3,133.44 3 01/01/93/40680/A M PALL £1,035.46

£0.00

£1,476.09

£440.63 4 01/01/93/40681/B A SHAH £440.00

£0.00

£3,339.93

£1,267.89

£1,631.41 5 01/01/95/16917/M SS BHATTI £2,229.56

£0.00

£2,229.56 6 01/01/95/45680/B C IRVING £396.56

£0.00

£1,145.62

£749.06 7 03/01/91/27136/F CE HENDERSON £1,031.06

£558.12

£472.94 8 01/01/93/58099/J MW GAUL £2,335.30

£0.00

£7,794.66

£3,807.01

£1,652.35 9 09/01/96/06011/C A WOODAGE £1,321.88

£5,375.63

£6,389.06

£10,442.81 10 01/01/93/52998/P AP HYMAN £5,639.99

£0.00

£6,745.96

£1,105.97 11 01/01/85/02603/X K BRACKENBURY £69.00 £111.63 -£42.63 12 01/01/95/34863/U H EL BEHERI £3,238.59

£0.00

£5,441.73

£418.60

£1,784.54 13 01/01/94/02211/G A CROSBY £2,606.94

£7,443.65

£8,739.63

£1,270.55

£9,583.60

£2,722.19 14 01/01/97/18961/A MW JONES £9,601.22

£881.25

£30,109.65

£12,775.46

£8,614.22 15 01/01/92/10505/F P BAPTISTE £396.56

£264.38

£1,097.18

£374.49

£396.62

£193.89 16 03/01/81/19471/T CM WARD £6,459.18

£8,474.42

£13,916.76

£6,366.10

£9,565.90 17 01/0190/05232/H A SHAHIDULLAH £550.78 £3,497.46 -£183.59

£3,497.46

£734.37 TOTAL £138,022.05

£28,958.00

£109,064.68

[1]Moosa. 1. Chronology The chronology for the Moosa claim is as follows: 28.2.94. Husband assisted party’s CLA 2 application for and grant of legal aid for representation to defend, and to cross-apply for, an application for a non-molestation injunction. Certificate granted to a sole practitioner, D H Walton, of Waltons, Solicitors. Both parties legally aided with nil contributions. 28.2. Legal Aid granted for this purpose: “To be represented on an application for a non-molestation and/or ouster injunction in matrimonial proceedings. If an injunction is granted to the assisted person with a power of arrest attached and an arrest takes place s/he may be represented when directions are sought.” 1.3.94. AH briefed for injunction hearing. 7.4.94. AH briefed for first committal proceedings following an alleged breach of the non-molestation injunction. Date unknown Waltons pass Moosa file to SJ Oliver. Certificate amended but SJ Oliver never acted under the certificate and merely acted as a conduit to pay counsel. 22.6.94. AH first PoA of £1,722.84 (1). 21.9.94. AH briefed for second committal proceedings following a second alleged breach of the non-molestation injunction. 31.10.94. SJ Oliver ceased to exist – all files passed to other firms (SJ Oliver, letter to LSC dated 8.8.00). SJ Oliver passes Moosa file to Austins. 100. LSC records position on a date unknown in late 1994 - 1995 “Solicitors now defunct. Direct payment made to counsel. Because original solicitors not valid to payment of even a nil bill, had to change solicitors (on ISD advice) so changed to another defunct firm SJ Oliver – but note SJ Oliver never acted under this certificate. They have just been used as a conduit to pay counsel – no payments to or recoupments from SJ Oliver to be made.”(Print of the relevant entry on the LSC Certificate Bills Overview screen dump. Emphasis added.) There is no date to show when this comment was added to the LSC records. The language suggests that the comment was added when, or soon after, SJ Oliver ceased to exist. However, the solicitor to whom the certificate had been issued continued to be recorded in the LSC’s records as SJ Oliver until the certificate was discharged and thereafter. This is confirmed by the comment in the LSC’s letter to the clerk to Mr Tresmann, another counsel instructed in this case, dated 12.7.00 that SJ Oliver remained the “solicitor on file”. 14.8. & 13.9.95 Brief for the second counsel instructed, Mr Tresman – £550 fee claimed for both hearings 30.8.95. AH second PoA of £5,092.16 (2). 6.2.96. AH third PoA of £665.34 (3). 6.2.96. Mr Tresman’s first PoA of 665.34 20 & 21.2.96 AH ½ day conference and ¾ day brief for the hearing. Case concluded by agreement reached at court. Date unknown Certificate discharged.105. Legal aid taxation or assessment of Austin and counsel’s (or at least AH’s) fees. AH’s fee note must have been used in that taxation or assessment.

106. Since Austins received a sum which had been paid to the firm on account of fees owed to AH, there must have been a taxation or an assessment of the assisted party’s fees followed by a payment to Austins of the taxed/assessed sum. The evidence did not confirm that the LSC had paid Austins the assessed sum due to AH, nor did it identify the size of the payment, how that sum was broken down or why it was paid to Austins rather than to AH direct. The sum due to AH was not paid to her and AH reported Austins to the Law Society in consequence.

107. The payment to Austins must have been made many months prior to Austins being intervened on 13.1.98 given the time that would have elapsed during the reporting, investigating and intervening processes. 21.2.96. AH fourth PoA of 352.50 (4). 21.2.96. First PoA to Mr Jarman, the third counsel instructed, of £352.50 6.3.96. AH fifth PoA of 300.00 (5). 6.3.96. First PoA to Ms Marion Kielty, the fourth counsel instructed, of £300.00. 13.1.98. Austins intervened into by the Law Society. Mr Austin was reported to SDT for non-payment of fees, including the fees the firm had received that were due to AH in Moosa case. 9.12.98. AH’s clerk, B Henderson, applied to the LSC for an ex gratia payment of outstanding fees following the Law Society’s intervention into Austins. The part of AH’s account that the clerk said was outstanding was £8,845. AH’s clerk also reported to the LSC in this letter that Austins’ practice had been intervened following the report made by the OSS that Mr Austin of Austin’s had failed to pay AH her Moosa case fees that the firm had received.

[09]12.98 AH’s clerk, B Henderson, submitted a supporting fee note totalling £16,215 naming Austins as the certificate holder with an application for an ex gratia payment. 114. Since £8,845 was said to be outstanding, it would appear that Austins had been paid, and had not paid on to AH that sum. It must have been the net sum taxed or assessed as due to AH after the PoAs to date had been deducted. (£16,215 – sums assessed down - £6,815.00 being total sum invoiced in fee note less sums assessed down less PoAs to date) that it had received on account of AH’s fees. 8.1.99. LSC, internal memo:

“No correspondence or bills have been received from Messrs Austins”

. No explanation was provided by the LSC as to why Austins had been paid a significant sum following the discharge of the husband assisted party’s certificate and a legal aid assessment by the court or why there is no record of this payment in evidence. The payment history under the wife assisted party’s certificate was not in evidence. 22.3.99. LSC internal memo stated that AH’s claim was not an ex gratia but an extra-statutory payment claim since counsel’s fees remained unpaid following a disciplinary hearing before the OSS and the subsequent intervention into Austins. 22.3.99. LSC informed AH that the area office was empowered to process her fee note because she had made an extra-statutory claim following the intervention of her instructing solicitor by the Law Society. 7.4.99. LSC invited AH to submit a CLAIM 1 to enable the LSC to assess counsel’s fees. The letter acknowledged that CLAIM 1 was not the form that a barrister would normally use and was the form that a solicitor would normally use. It is normally used to claim payment from the Legal Aid Fund following a final taxation or assessment. Its use was requested by the LSC for its convenience and so as to enable AH’s extra-statutory application to be processed. 19.4.99. AH submitted a completed and signed CLAIM 1 form claiming £24,156.75, being the previous claim with a 75% uplift which the application explained had been added to the claim due to the difficulty of the case and in representing client. 31.1.00. AH sixth PoA £11,360.78 (6). This sum is 65% of the difference between the CLAIM 1 form claimed figure and the total of the PoAs to date (i.e.65% of £24,156.75 - £6,815.00). 3.5.00. LSC reclaim all but £917.00 of the total of all six PoAs. The total reclaimed was £17,258.69. The reasons for disallowing all but, in AH’s case, £917.09 not provided to AH but the decision to reclaim the entire PoA paid to Mr Tresman was explained to Mr Tresman’s clerk in a letter dated 12.7.00 that explained why his Moosa fees had been recouped and reclaimed in full. 3.5.00. The LSC assessed and credited AH with £917.09 for her LSC funded work on the Moosa case. The net reclaim for the Moosa case was, therefore, £17,258.69 There is no evidence that LSC gave AH an opportunity to comment on that assessment before or after it had been carried out or to put forward her case as to why the assessment should be based on all the Moosa case work she had undertaken. Indeed, the LSC informed AH’s clerk that she had no right to “appeal” since the assessment was an extra-statutory one outside the regulations (see below). 3.5.00. The Mousa PoAs that were made to all the other counsel instructed in the case, being Mr Tresmann, Mr Jarman and Mr Kielty, were reclaimed. There is no evidence as to what, if any, subsequent assessment was made in favour of each of these three counsel who were also instructed in the Moosa case and it would appear that each of their assessed fees was “nil”. 7.00. The LSC informed AH’s clerk:

“Further to your “appeal” against our assessment of counsel’s fees. When a solicitor has been intervened and we decide to assess counsel’s claim directly, there is no right of appeal against our decision. … These payments are outside the regulations and do not have to be authorised in any event.” 12.07.00. The LSC informed Mr Tresman’s clerk in reply to a request for the reason for recoupment of his fees: “No prior authority was obtained to instruct counsel and we are unable to make retrospective amendments. Furthermore, the certificate has been discharged.”

Total net recoupment £17,258.69

[2]Totals PoAs prior to Austins’ intervention: £ 6,815.00 AH’s fee note for all work127. undertaken: £16,215.00 Total paid to Austins for AH’s fees: unknown Total said to be owed but unpaid

128. following Austins’ intervention

129. and failure to pay AH: £ 8,845.00

130. AH’s CLAIM I claim, fee note

131. claim uplifted 25% for difficulty: £24,156.75

132. Sixth and final PoA (65% of

133. difference between claim 1 figure

134. and first five PoAs) £11,360.78

135. Total PoAs: £18,175.78 Total assessed by LSC

136. as due to AH £ 915.00 Total net recoupment £17,258.69 3. Comment Authority. The principal work undertaken by AH consisted of three full-day hearings and one ¾ day hearing in the county court. These hearings involved an ouster and non-molestation injunctions hearing (1.3.94), committal proceedings (7.4.94), further committal proceedings (21.9.94) and a children’s arrangements hearing (21.2.96).

AH’s fee note: £1,100.00

[3]It was recorded on the certificate, when issued, that legal aid and emergency legal aid had been granted for:

“representation in relation to a non-molestation and/or ouster injunction in matrimonial proceedings. If an injunction is granted to the assisted person with a power of arrest attached and an arrest takes place s/he may be represented when directions are sought.”

That limitation, which does not appear to have been subsequently amended, is appropriate to cover the first three hearings and, probably, the fourth hearing as well. These hearings were concerned with the granting of both ouster and non-molestation injunctions against the husband assisted party, two separate allegations of contempt against him relating to alleged breaches of those injunctions and a hearing to consider the appropriate arrangements for the children in the light of the injunctions. Thus, AH had good grounds for being entitled to an appropriate fee paid out of the Legal Aid Fund for all the work that she had undertaken on this case which was set out in her fee note.

[4]One certificate covering both the legal aid application and the emergency application was initially granted to the assisted person and was issued to Waltons on 28.2.94. Soon afterwards, the LSC assigned/reissued the certificate to SJ Oliver since, as recorded on the LSC dump: “[Waltons] now defunct. Direct payment made to counsel. Because original solicitors not valid to payment of even a nil bill, had to change solicitors (on ISD advice) so changed to another defunct firm SJ Oliver”.

[5]Named solicitor. The record stated that SJ Oliver was “another defunct firm”. SJ Oliver became defunct on 31.10.94 when the firm went out of business, as explained by Mr SJ Oliver, the sole practitioner who constituted the firm, in a letter to the LSC dated 8 August 2000. He also stated that his existing files were handed onto other solicitors at that time. It follows that the Moosa file was handed onto the third firm of solicitors that was involved with this certificate, Austins, on or about 31.10.94. However, although the LSC was aware that the outstanding certificate had been, in effect, passed onto, assigned or re-issued to Austins following the certificate-holder, SJ Oliver becoming defunct and instead of discharging that certificate, it made various payments under it to Austins itself and to counsel instructed by Austins. It follows that although the certificate and the LSC’s records were not amended to show that the certificate had been re-assigned or further re-issued to Austins at any stage between 1974 and 2000, the LSC is in difficulties in now contending that Austins were not authorised to undertake work or to instruct counsel under that certificate since it had expressly or impliedly authorised the amendment of the certificate in favour of Austins.

[6]AH’s first PoA was paid in June 1994, before Austins received the file in October 1994, and five PoAs were applied for by and paid to AH after that firm had taken over the Moosa file. Similarly, three further PoAs were applied for on behalf for, and paid to, three other counsel, who were also instructed in these matrimonial proceedings.

[7]Conclusion of case. The case was concluded following the hearing in February 1996. This can be seen from AH’s comments in the CLAIM 1 form that she filled out in 1999. She described the hearing as being one at which:

“Counsel successfully purges [client’s] contempt. Long negotiations in court due to parties’ religious beliefs.”

Her other comments suggest that the “long negotiations” ended in a settlement of the matters in dispute arising from the injunctions and the consequent arrangements for the children.

[8]Payment to Austins for AH’s fees. Austins were paid a significant sum covering AH’s fees. Since both parties were legally aided with nil contributions, this sum must have been paid by the LSC who would not have paid it without a taxation or assessment. Yet the note on the LSC file dated 8.1.99 states ““No correspondence or bills have been received from Messrs Austins”. The LSC appears to have made a payment or payments to Austins, presumably pursuant to a court assessment following the conclusion of the case in February 1996 and the discharge of the certificate that the LSC referred to in its letter to Mr Tresman’s clerk. This payment was for, or included, a sum for AH’s fees. It is not clear why any payment for AH’s fees was made to Austins rather than to AH direct. Moreover, there are no available details of that assessment which, in respect of AH’s fees, must have been based on AH’s fee note totalling £16,215 at a time when AH’s PoAs totalled £6,815.00. This would explain AH’s clerk’s initial application letter dated 9.12.1998 which stated that the outstanding unpaid fees totalled £8,845 since the difference between £16,215 and £6,815 is £9,400 and it is likely that her fees were assessed down so that a net sum of £8,845 remained due for payment and that that net sum was paid to Austins.

[9]AH’s application for extra-statutory payment. AH’s clerk, on 9.12.1998, applied to the LSC for an ex gratia payment/extra statutory payment and the accompanying letter from her clerk explained that the application had been necessitated by Austins’s non-payment to AH of legal aid fees that it had received on AH’s behalf and by the subsequent Law Society intervention in the firm. The letter applied for a sum of £8,845 on her behalf.

[10]AH then re-applied for this payment, at the LSC’s request, on a CLAIM 1 form. The total sum claimed as being the sum due for all the work AH had undertaken was increased from £16,215 to £24,156 because, as was stated in the application, the work had been particularly difficult. Thereafter, a PoA was made to AH, being £11,360.78 which is 65% of the outstanding balance (£24,156 - £6,815). This payment was made as a PoA of the extra-statutory payment which AH had applied for in the CLAIM 1 claim.

[11]6th PoA to AH. The nature of the sixth and last PoA to AH on 31.1.2000 is unclear. It was made following her application for an ex gratia payment and only four months before the LSC made a full reclaim of all AH’s PoAs save for £915. The payment cannot, whatever its basis or nature, have been made under regulation 100(2) since it covered fees applied for on an extra-statutory basis and was one which the LSC stated was one which was made following the intervention into Austins and was one for which:

“there is no right of appeal … these payments are outside the regulations and do not have to be authorised in any event.”

[12]LSC’s reclaim decision. The reason for the subsequent reclaim decision taken on 3.5.2000 of all of the PoAs paid to AH’s for her Mousa fees was not explained to her at the time. However, the reason for it being taken can be inferred from a sketchy statement explaining the recoupment decision taken in respect of another counsel instructed in the same matter who had paid a PoA in that matter. This explanation, given to Mr Tresman ’s clerk in a letter dated 12 July 2000, was that:

“No prior authority was obtained to instruct counsel and we are unable to make retrospective amendments. Furthermore, the certificate has been discharged.”

AH was informed that she had no right to “appeal” or make representations about the size of this assessment or as to whether it was an appropriate way of dealing with the payment of fees to her for the Mousa case (see paragraph 11 above).

[13]Invalid reasons given by LSC. In relation to the LSC’s explanation as to why only £915 was assessed in favour of AH and nothing in favour of the other three counsel, there is no justification for contending that counsel’s work was not authorised. The work was authorised by the certificate and all their work was undertaken for three different firms of solicitors at times when Oliver or Austins was holding, or was being treated by the LSC as holding, the certificate. The further explanation that the certificate had been discharged does not explain the reclaim decision. The certificate must have been discharged following a report that the case was concluded and a detailed taxation or assessment then taking place, based on AH’s first fee note for £16,215 rendered in c.1996. This led to a further substantial sum becoming due for payment to AH in addition to the total of the first five PoAs she had received, to payment of that sum to Austins and to the extra-statutory application she then made to the LSC.

[14]Finally assessed fees for £917.09. Following the recoupment decision, the LSC then made an extra-statutory assessment of all fees due to AH in the sum of £917.09, having previously paid £18,175.78 in PoA payments against an overall final claim for payment of £24,150.75. The sum that was assessed as being payable presumably relates to the limited amount of authorised work that the LSC considered AH had undertaken under the certificate. However, no breakdown or explanation of this assessment was provided by the LSC at the time or was available at the hearing and AH was not given any opportunity to provide comments about the proposed assessment before or after it was made and was denied a subsequent right of appeal or comment.

Conclusion

[11]LSC’s claim – regulation 100(8). The LSC’s claim for the return of all PoAs, save for £915, cannot be sustained under regulation 100(8) since the assessment that is relied as providing the legal basis for the repayment claim was the assessment dated 3 May 2000 which the LSC acknowledged was an extra-statutory assessment of an extra-statutory application for payment outside the regulations.

[12]In any event, the relevant assessment is the taxation assessment that must have preceded the payment to Austins in 1996. That led to further payment being made in favour of AH so that there was no entitlement to repayment under regulation 100(8) even if that assessment was relied on as the LSC’s justification for claiming repayment of Moosa fees.

[13]LSC’s claim – restitution. AH has the following grounds for contending that the restitutionary repayment claim is unsustainable:(1) Given the wording of the certificate, all the work carried out by counsel, was covered by the certificate and was instructed by a firm recognised by the LSC as being the certificate holder (i.e. Walton, Oliver or Austins). All work was therefore authorised by the LSC.

(2) The relevant final taxation or assessment was the assessment that took place following the discharge of the certificate that concluded that a further sum was due to AH in addition to the PoAs that had by then been made to her. It appears that that sum, which was never received by AH, was £8,845.

(3) The repayment claim was flawed since AH was denied an opportunity to challenge it or to make representations prior to the decision being taken to claim repayment of all PoA save for £915.

(4) The LSC has not shown that AH was unjustly enriched or that she received money under a mistake or that there is any other factual basis for a restitutionay claim.

(5) The total of all PoAs paid to AH is less than her final claim for fees. This claim was never fully or properly assessed.

(6) The LSC cannot show that the total of all PoAs is less than the sum that AH is entitled to be paid out of the Legal Aid Fund.

(7) No credit has been given to AH for the sum paid to Austins for AH’s taxed or assessed fees, a sum which would appear to be £8,845. Since it was Mr Austin who benefited from the payment of this sum, the LSC should seek repayment of that sum from Austins and not from AH since it is Austins who should reimburse the LSC for this loss.

(8) Overall conclusion. The two separate bases upon which the LSC seeks recoupment of all but £915 of the payments made to AH are not sustainable in the light of the presently known facts, albeit that those facts provide an incomplete account of the relevant history of the Moosa case.

[2]Edwards 1. Chronology

[14]The chronology for the Edwards claim is as follows: 5.1.98. Legal aid granted to wife assisted party and certificate granted to Moss & Poulson limited to financial applications down to but not including a final contested hearing. 7.9.98. AF had pre-hearing two-hour conference after 8.00 pm with her client and her instructing solicitor. 8.9.98. Hearing in the county court. AF left at lunchtime following an adjournment to enable negotiations to take place. Instructing solicitor reached an overall agreement which was incorporated in a court order. No order as to costs save a legal aid assessment of the wife assisted party’s costs. 10.9.98. AH’s clerk submitted a fee note: Conference £350. Brief £750 - time charged for hearing and negotiating: 4 hours 30 minutes. Feb 99 Case concluded. Solicitor reported to LAB. 29.6.99. Bill provisionally assessed by court. AH’s fees assessed down to: conference £250, brief £450. Solicitor informed the LSC that the provisional taxation was unchallenged by AH. No evidence as to whether the solicitor informed AH of the reduction of her claimed fees in the provisional detailed assessment so as to give her the opportunity of challenging the assessment. 26.10.99. AH first and only PoA of £3,833.44. 12.6.00. Solicitors lodge CLAIM 1 and assessed bill with LSC. Legal Aid assessment certificate. Marginal adjustment to solicitor’s profit costs and no adjustment to counsel’s fees in the final assessment compared to the provisional assessment. 5.7.00. LAB recoupment of £3,833.44 from AH and a net payment of £700 to AH.

[2]Totals AH’s fee note: £1,100.00 Provisional assessment: £ 700 AH’s PoA £3,833.44 Net sum reclaimed: £3,133.44

[3]Comment

[15]The principal complaint is that AH submitted an application for a PoA in the sum of £3,833.44 on 29.10.2000 after submitting a fee note at the conclusion of the case in the sum of £1,100 on 10.9.1998 which had been provisionally assessed down to £700 on 29.6.2000. AH had no idea why this excessive application had been submitted following the fee note submission and subsequent provisional assessment in a much lower sum when asked about it in cross-examination. Moreover, a full day in court was claimed for in the fee note despite AH leaving the court building and the negotiations at lunchtime.

[16]There is no evidence that the solicitor sent AH the provisional taxation details to enable her or her chambers to challenge the assessing down from £1,100 to £700. Since the brief fee had been claimed at £750 on the basis of a full day at court and she had left at lunchtime, the reduction of the fee to £450 and the overall reduction to £700 would appear to be unchallengeable. 4. Conclusion

[17]The LSC can readily establish its claim. AH cannot establish a substantive defence but has limitation and failure to notify defences available. It is particularly unsatisfactory that there are no documents available to show why the half day overclaim and the PoA application were submitted and to show the details of the PoA application.

[3]Pall 1. Chronology The chronology for the Pall claim is as follows:

[1993]Legal aid granted to assisted party Maan Pall, address C/O Young Solicitors, and certificate granted to McGrath & Co, solicitors. 14.06.94. AH first PoA of £440.63. 22.02.96. Second counsel paid first PoA of £264.37. 19.3.98. AH second PoA of £1,035.46. 22.09.99. Second counsel paid second PoA of £1,057.52. Dateunknown Case concluded by agreement. Date likely to have been in 1999. 174. No evidence that the taxed bill was submitted to AH for comments prior to being processed by the LSC. 11.5.00. LSC records show that the solicitor’s bill was processed by LSC following an inter partes taxation and the solicitor then submitting a CLAIM 2 form. In consequence, a sum of £24,500.00 was paid or credited to the solicitors for their assessed costs and disbursements. This sum included a sum for both counsel’s taxed fees in the combined total of £2,291.25. 31.5.00. Recoupment of both counsel’s fees in the combined total of £2,797.98 from McGrath & Co as part of the total recoupment from those solicitors of all PoAs totalling £7,873.79. 19.07.00. Second recoupment of both PoAs paid to AH totalling £1,476.09 reclaimed from AH. Following this second recoupment, AH was subject to a nil payment on this case.

[2]Totals178. Total of AH’s PoAs: £1,476.09

179. Total of second counsel’s PoAs: £1,321.89

180. Total of all counsel’s PoAs: £2,797.98

181. Sum assessed in favour of both

182. Counsel, AH’s unknown portion of

183. which was allegedly paid to

184. her by the solicitors: £2,291.25

185. AH’s share of assessed counsel’s

186. fees: Unknown

187. Excess of PoAs over

188. combined assessed total: £ 506.73

189. Sum recouped and reclaimed from

190. AH following alleged payment to

191. her by solicitors and non-repayment

192. of PoAs: £1,476.09

[3]Comment

[18]The only details of this case that were proved in evidence are that the original certificate was issued in the name of Pall in 1993 to McGrath & Co in favour of Mr Maan Pall as the assisted party in proceedings involving a claim for conversion in a contract matter. The screen dumps record two PoAs as having been made to AH under civil certificate number 01019340680A. Mr Holmes stated in his witness statement that the solicitors had advised the LSC that no claim would be made on the Fund as the costs had been paid in full by the opposing party in respect of all costs including counsel’s fees. It then stated:

“This meant that Mrs Henthorn had effectively been paid twice for the work she had done. She was therefore required to repay the PoAs she had received from the LSC.”

[19]Mr Holmes’s evidence explained what appears to be shown on the screen dump – namely a payment of £24,500 to the solicitors on 11.05.2000 and the recoupment of all PoAs from the solicitors totalling £7,873.79 on 31.05.00. Since the costs were paid in full by the opposing party, the costs, including counsel’s fees, must have been paid directly to the solicitors who accounted for those costs to the LSC who recouped all the PoAs from them and credited the balance to the solicitors.

[20]It would also appear from a manuscript addition to the copy of the relevant screen dumps in the trial bundle that a second counsel was paid two PoAs. (The manuscript addition against two PoAs refers to this second counsel as “DJ (name added)” and the fees paid to this counsel are included in the total of “PoA Counsel’s Fees”). In determining whether AH was paid twice, it would have been relevant to see whether the two PoAs paid to this second counsel were repaid and whether McGrath & Co paid this second counsel the full fee assessed and he/she repaid the LSC or whether only the net fee (i.e. the assessed fee less the PoAs) was paid to that counsel by McGrath & Co.

[21]It would also appear that the total of the PoAs paid to both counsel exceeded the assessed total fees payable to counsel by £506.73. It is not shown, but would be instructive to know, whether this excess occurred as a result of the PoA claims of AH or of the second counsel or of a combination of both. This element (i.e. up to £506.73) of the current claim against AH may well be maintainable as a conventional regulation 100(8) claim against AH but not currently on the basis of the available evidence adduced at the trial.

[22]The LSC’s claim appears to be that the case was concluded favourably to the assisted party and the solicitors paid AH the entirety of the fees assessed in an inter partes taxation as being payable to counsel of £2,291.25 and then paid that sum to AH when they were paid the assessed costs by the losing party. Meanwhile, the solicitors had been recouped all PoAs by the LSC. According to Mr Holmes’s evidence, which is unsupported and appears to be an assumption rather than based on direct knowledge or supporting evidence, AH failed to return the PoAs paid to her to either the solicitors or to the LSC. On that basis, therefore, AH has been paid twice for some of the work she had done. She was in consequence being recouped, using regulation 100(8), the PoAs she had received. No copy of any letter from the solicitors or other record of this double payment to AH or evidence of her failure to return the PoAs to the solicitors or the LSC was put in evidence other than Mr Holmes’s evidence that this notification was made on a “Claim 2” which is the LSC report form made by the solicitor when the assisted party’s costs have been paid in full by the losing party.

[23]The other evidence that was adduced relating to the Pall case is inconclusive. For reasons that were not explained, the LSC’s solicitors wrote to two firms of solicitors in 2007 enquiring about AH’s involvement in the Pall case as disclosed by their files as follows:(1) On 1.2.2007 they wrote to Fairchild Greig who replied on 14 March 2007 that they had been able to recover papers from storage in a case in which they represented Mr Pall in a dispute under certificate 01019343358L and that a different counsel from unrelated chambers was instructed. This case is obviously a different case and is not relevant to this claim.

(2) In 8 June 2007, Mcgrath & Co replied to the LSC’s solicitors that they had been the successor solicitors in matters relating to Mr Pall, having taken over from CA Young. That would explain why the details on the certificate relied on by the LSC in this claim gave Mr Pall’s address as being “C/O Young Solicitors”. However, the certificate of the dispute that they were referring to was not given so that it was not established that the letter was referring to the same dispute as the claim was based on. On the assumption that it was the relevant certificate and case, the letter also stated that the only counsel’s fee notes that could be found on the file were in the names of two different counsel. This statement contradicts the LSC evidence which suggests that the two counsel instructed were AH and the second counsel referred to above. The LSC evidence is to be preferred to this statement and it is to be concluded that AH was instructed in the Pall case. However, the absence of any record of AH being instructed suggests that McGrath did not pay AH any fees following the inter partes assessment.

Conclusion

[24]Regulation 100(8). AH’s defence is that there is insufficient evidence to discharge the burden of proof that the sum of £1,476.09 was correctly reclaimed from her and that she had been paid a sum of at least £1,476.09 by the solicitors.

[25]Moreover, had AH been paid twice as the LSC contends, the recoupment would not be capable of being made under regulation 100(8) since it did not arise as a result of a final assessment. AH’s contention that regulation 100(8) was inapplicable is correct but the wrong reason was put forward to show that this regulation is inapplicable. The reason given on behalf of AH was that no final assessment, albeit an inter partes assessment, had taken place but such an assessment did take place when the inter partes assessment took place. However, regulation 100(8) was correctly stated to be inapplicable because, following the recoupment of AH’s fees from the solicitors as part of the sum of £7,873.79, there was no remaining sum “due to the fund”, which is the condition precedent to recoupment under that regulation. No such sum was due to the LSC since AH’s PoAs had been recouped from McGrath who had been debited with AH’s PoAs totalling £1,476.09 from monies otherwise due to it from the Legal Aid fund.

[26]Restitution. The confusing evidence suggests that the claim, if there is a recoupment claim at all, it is based on Mr Holmes’s assumption that AH was paid £1,476.09 twice, once by the LSC by way of PoAs and once by McGrath by way of a payment out of the sum of £2,291.25. However, McGrath’s evidence does not appear to record any involvement by AH in the case despite being them being the solicitors throughout. If there is a claim, it would appear to be a restitutionary claim for money had and received which the LSC is bringing on behalf of McGrath since the screen dumps do not show that the Fund is still owed £1,476.09, being the return of the PoAs paid to AH for this case. The claim cannot succeed on the basis of the present evidence.

[27]Limitation – restitution. In any event, the cause of action accrued when AH received the second payment which, if she received it at all, was likely to have been received more than six years before the claim form was issued on 3 February 2006.

[28]Overall, the LSC cannot establish that AH must repay £1,476.09.

[4]Shah

[1]Chronology

[29]The chronology for the Shah claim is as follows:

[1993]Certificate granted to assisted party Shah and issued to solicitors McGrath & Co. 14.6.94. AH First PoA of £440.63. 18.06.97. AH Second PoA of £1,267.89. 19.3.98. AH third PoA of £1,631.41. Dateunknown Case concluded by agreement. 211. Nothing assessed in favour of AH. It is not known whether anything was added for AH’s fees in the bill submitted by McGrath & Co for assessment. 31.05.01. Recoupment of all PoAs including the three PoAs paid to AH and the PoAs paid to McGrath & Co. It is assumed that the recoupment of all PoAs was obtained from McGrath & Co as occurred in the related Pall claim. 19.7.00. Second recoupment of all three PoAs to AH totalling £3,339.93 recouped from AH.

[2]Totals Total of AH’s PoAs: £3,339.93 Sum assessed in favour AH: Nil Sum recouped and reclaimed from AH: £1,476.09

[3]Comment

[30]The only details of this case were provided on the screen dump and were that the original certificate was issued in the name of Shah in 1993. The screen dumps record two PoAs being made in favour of AH under the entries for that certificate. This case was linked to Pall’s case (claim 3 above). The certificate number contained on the dump was 01019340681B, one number higher than Mr Pall’s certificate, the matter was, like Mr Mann’s matter, a contract conversion claim and it was stated in McGrath & Co’s letter to the LSC’s solicitors that Ms Shah was the partner of Mr Pall. Moreover, the first and third PoA in this claim were made on the same dates as, respectively, the first and second of AH’s two PoAs in the Pall claim.

[31]Nothing more is provided by way of evidence for this claim. Mr Holmes made no specific reference to this claim. It is to be presumed that the bill was submitted for inter partes assessment following a settlement of the claim and was assessed with the Mann bill and that the basis of claim is the same as for the Mann claim.

[32]Although PoAs were claimed by and paid to AH (but not it is to be inferred from and to the second counsel in the Mann case since there is no reference to this on the screen dump), counsel’s fees were assessed as nil. It is not known whether counsel’s fees had been included in the bill for assessment and were then assessed as nil or were not added to the bill when submitted for assessment. It is possible that this is a case where the solicitors did not claim fees for counsel in error but it is also possible, though unlikely, that AH’s fees in both cases were erroneously assessed as a combined assessment in the Mann case. AH has a complaint that there is no evidence that she was asked for her comments that the bill contained nothing for her fees or that the fees that were included were assessed as nil.

[33]This is a case in which AH’s fees were not assessed at all. This is because it is unlikely that AH undertook no work in this case yet submitted PoA applications for work carried out because it is unlikely that no counsel was instructed in this related claim to the Pall claim and it is equally unlikely that AH would have known the details of the certificate to enable her to claim PoAs under it even though she had not been instructed at all.

[34]Regulation 100(8). The LSC claims reimbursement of the PoAs because nothing was assessed in favour of AH in the assessment following the settlement of the Shah claim. Since there is no evidence that AH undertook no work at all in this case and since it is likely that there was no reference to AH’s fees in the bill submitted for assessment, this appears to be a case in which her fees were not subject to assessment at all. Thus, arguably, regulation 100(8) cannot found a reimbursement claim since there has been no final assessment of AH’s fees.

[35]If regulation 100(8) may be relied on, the assessment that yielded a nil assessment was flawed because there is no evidence that AH was informed of the nil assessment or given an opportunity to appeal it or to claim an assessment by the LSC of the fees that she should be paid for the work that she had carried out

[36]Restitution. There is no evidence of AH being unjustly enriched by the PoAs she received in this case.

Conclusion

[37]As with the Pall claim the LSC cannot establish this claim as a claim under regulation 100(8) or as a restitutionary claim.

[5]Bhatti 1. Chronology

[28]The chronology for the Bhatti claim is as follows: 21.3.95. The certificate was granted to the assisted party’s father to bring a personal injury claim against the assisted party’s school. The certificate was issued to Debidins, solicitors. When the assisted party turned eighteen soon after the claim had been issued, the certificate was assigned to him. 7.1.98. AH’s first fee note totalling £2,430.00. 12.2.98. AH first PoA of £2,229.56. 14.6.99. AH’s second fee note totalling £4,030. 6.00. The case was concluded by a settlement agreement. 7.00. Costs assessed by court. Assessment was confined to an assessment of the costs not covered by settlement agreement and did not include an assessment of counsel’s fees. 10.7.00. The Legal Aid assessment certificate was produced by Brentford County Court assessing counsel’s fees as nil. 13.7.00. The assisted party’s solicitor sent a CLAIM 1 form to the LSC. The claim was settled by the defendant paying the assisted party’s inter partes costs in full. 28.7.00. A copy of a letter that was written by the assisted party’s solicitors to AH’s clerk, B Henderson, which confirmed a telephone agreement that had been reached with him that AH would accept £3,800 from the solicitor in full and final settlement of AH’s fees. A copy of AH’s fee note endorsed with a handwritten comment: “£3,800. Agreed in full” was obtained by the LSC and was added to the bundle. This copy of the fee note was obtained from AH’s solicitors and the endorsement was added by a representative of that firm, presumably as a record that was added to the solicitors’ file. 26.8.00. LSC recoup £2,229.56.

[2]Comment

[29]The basis of recoupment was that the claim was settled with the defendant paying the assisted person, AH’s client, his full assessed inter partes costs that included counsel’s fees. The solicitor reached an agreement with AH’s clerk that he would accept £3,800 in full and final settlement of her fees and a copy of a letter from the solicitor to AH’s clerk was produced which confirms the agreement and states that a cheque for that sum was enclosed. The letter asks for a receipted invoice but none was disclosed by the solicitor and, it is to be inferred, was never sent.

[30]AH’s case was that she had never received the cheque or any other form of payment in the sum of £3,800. She produced what she maintained were her only bank statements for the account into which all her fees were paid and there is no entry for a sum of £3,800 in the entire six month period following the date of the solicitors’ letter.

[31]AH’s defence is three-fold:(1) She is not required to pay back the PoA since the LSC did not prove on the balance of probabilities that the cheque for £3,800 was ever received by her or her clerk and was never paid into her account so she never received that sum from her solicitors. Unless and until she received that sum, she is under no obligation to repay the PoA.

(2) The PoA cannot be claimed back by means of a repayment claim under regulation 100(8) since there was never a final legal aid assessment by the court or the LSC.

(3) The only basis of recovery would be by way of a restitutionary claim but the LSC has not proved that AH has been paid twice.

[32]In this case, unusually for a case where the paying party has agreed to pay the entire assessed costs of the legally aided party, there was nonetheless a final legal aid assessment. This occurred because the agreement to pay the assisted party’s costs was reached too late to prevent the final assessment being carried out by the court. In consequence, the court would not return the assessment fee and concluded the assessment as nil and a small sum, being the assessment fee, was assessed as being payable to the solicitors. However, counsel’s fees were assessed as being nil. In those circumstances, it is arguable that no assessment of the kind envisaged by regulation 100(8) took place. Alternatively, if such an assessment did take place, regulation 100(8) was correctly used by the LSC.

[33]However, although the letter relied on by the LSC appears to show that AH was paid her fees in the agreed sum of £3,800.00, AH’s evidence, in the form of her bank statements of what she claimed was the only account that she had used for the receipt of her legal aid fees, provided a possible rebuttal of that presumption. What the LSC should have provided, but could no longer obtain, was direct evidence of the movement of £3,800 from the solicitors’ account to an account of, or operated on behalf of, AH or some other direct evidence that a movement of these funds occurred from the solicitors to AH.

[34]The LSC would not succeed with this claim on the balance of probabilities if it has to be decided on the basis of the evidence adduced at the trial, subject to procedural defences. However, there has been no final assessment. AH was, however, prevented from investigating or putting forward the defence that she wished to put forward as a result of the long delay that elapsed between the cause of action accruing and the resulting absence of all relevant records and documents.

[6]Irving

[1]Chronology

[35]The chronology of the Irving claim is as follows: 7.8.95. Mrs Irving applied for, and was granted, legal aid and an emergency certificate to seek an ouster injunction. The certificate was issued to Gattas Denfield 12.9.95. First hearing in the county court. 18.9.95. Second hearing in the county court. 19.10.95. The assisted party’s solicitors applied to extend scope of certificate to cover the defence by the assisted wife of her husband’s Children’s Act application. 8.12.95. Third hearing in the county court. 3.5.96. The husband’s undertaking was extended until further order. There was no appearance on behalf of the assisted wife. 10.5.96. A fee note in this case was sent by AH’s chambers to the solicitors for £587.50 in name of Mr Christopher Wagstaffe, a more junior member of AH’s chambers at that time. 11.7.96. Mr Wagstaffe’s first PoA of £449.44. 26.3.97. AH first PoA of £396.56. 6.5.97. Mr Wagstaffe’s second PoA of £440.63. Date unknown Conclusion of the case by settlement or court order. The probable date was sometime in 1996 following the indefinite extension of husband’s undertaking. 23.9.98. AH second PoA of £749.06. .9.98 Costs assessed by court 23.9.98. Legal Aid taxation certificate, counsel’s fees certified in total sum of £587.50. Mr Wagstaffe’s fee note was submitted to the court in support of the claim for counsel’s fees. 9.8.00. The solicitors sent a CLAIM 1 form and the assessment certificate to the LSC. Counsel’s fees were claimed in the total assessed sum of £587.50. 19.1.01. The two PoAs to AH and the two to Mr Wagstaffe recouped. Total recouped was £1,155.62 from AH and £991.07 from Mr Wagstaffe. £587.50 paid by LSC to Mr Wagstaffe.

[2]Comment

[36]The principal issue is whether AH or Mr Christopher Wagstaffe appeared for the assisted person in the county court. AH was clear in her evidence that she appeared. She remembered the case and the solicitor, Mr Denfield, frequently instructed her and only her. He died in 1998 and there was no-one else in the firm who had any knowledge of his cases. AH could not explain why the fee note was prepared for Mr Wagstaffe nor why her clerk had applied for and obtained PoAs for both of them, in the case of her first and his second, being applied within two months of each other. Mr Wagstaffe moved away from chambers, as far as she could recollect, soon after the appearances in the county court, by whoever appeared, in 1995.

[37]The assessment process was unsatisfactory. The case was completed in May 1996 when the husband renewed his undertaking but the legal aid assessment did not take place until September 1998 and there is no evidence to suggest that AH’s chambers were notified of the assessment.

[38]There is no explanation now available as to why AH’s clerk applied for PoA for this case on behalf of both AH and Wagstaffe, why the PoA applied for were in both cases is significantly greater than the final fee note rendered, why the PoA applications were based on different, although not significantly different, total fees and whether there is any evidence now available to support the fee note being submitted in the name of Wagstaffe.

[39]It is possible that the fee note was wrongly submitted in Wagstaffe’s name and that the PoAs were correctly applied for on behalf of AH, albeit in excessive amounts and that Wagstaffe’s applications were made on his behalf incorrectly. None of these difficulties can be explored and considered since the original mistakes were made in 1996.

[40]The LSC would succeed in establishing its entitlement to recoup from AH and Wagstaffe but AH is incapable of seeking to show that she was entitled to be paid £587.50 and that that sum should be set against the sum now being recouped.

[7]Henderson

[1]Chronology

[41]The chronology for the Henderson claim is as follows: 6.5.91. AS’s daughter-in-law was injured in a traffic accident causing long-term neck, back and abdominal pain. 24.12.91. Linnels, solicitors, start to act following grant of legal aid. 17.06.92. AH first advised on quantum. On subsequent occasions, AH advised and settled pleadings. 4.2.94. AH first and PoA for £1,031.06. 15.2.94. Last advice by AH recorded by Linnels in assessed bill of costs. 11.3.94. Assisted party transfers instructions to Brookstreet des Roches, solicitors. 11.94. Assisted party transfers instructions to Blaser Mills Winter Tayler, solicitors. 15.2.94. – Case subject to being struck out and to two appeals against that order 01.05.95 resulting in the Court of Appeal reinstating the case. The assisted party’s costs were separately assessed and paid by the opposing party pursuant to the costs order of the Court of Appeal. AH was reported to have been disinstructed and replaced by Mr Wagstaffe from her chambers but this is neither material nor evidenced.

[01]05.95 End of the period that the case was subject to the Court of Appeal’s costs order. 22.3.96. Mr Wagstaffe advises on quantum. 5.11.96. Blaser Mills Winter Taylors cease to act. Assisted party instructs new solicitors whose identity is not revealed in the papers. 29.7.98. AH charges in her fee note for telephone conference concerning a second appeal to the Court of Appeal which is concerned with the quantum award which failed to beat the payment into court. 7.98. AH charges in her fee note for drafting documents for appeal. 29.7.98. Application for permission to appeal out of time refused by the Court of Appeal. Legal Aid certificate discharged. 29.7.98. Case concluded. 23.5.99. AH’s fee note issued. Date unknown Costs assessed by court 28.3.01. CLAIM 1 form received from solicitors then acting following the final assessment of the assisted party’s bill. AH’s fees were assessed but only the fees in first period she claimed for between 17.6.92 and 14.2.95 in Linnels’ and Brookstreet des Roches’ times. The claimed fees heavily taxed down. The fees she claimed for working on the second appeal in the fourth solicitors’ time in July 1998 (i.e. subsequent to Blaser Mills Winter Tayler’s times) were not, apparently, claimed for or assessed. It is not known whether any other counsel’s fees were claimed or assessed for this work. 9.4.01. Recoupment of AH’s PoA of £1.031.06 and a credit against that recoupment of AH’s fees £558.12 as assessed by the court.

[2]Comment

[42]Three issues arise:(1) Did AH undertake work in connection with the second appeal in July 1998 during the time of the fourth solicitor which was not assessed or paid for?

(2) Why were her fees incurred in 1992 – 1994, which were used as the basis of the PoA claim in February 1994, taxed down in 2001?

(3) Was AH given the chance to comment on or appeal against the assessment of her fees?

[43]The LSC commission contends that the evidence shows that AH had been disinstructed by Blaser Mills Winter Tayler in 1994 and she didn’t act subsequently. AH contended that she had acted subsequently once Blaser Mills Winter Tayler had been disinstructed. Since Blaser Mills Winter Tayler, who contended that they had disinstructed her (which they had) expressed no view about whether or not AH had been reinstructed in July 1998 eighteen months after they ceased to act and since it was not that firm who submitted the bill for assessment, what happened in 1994 is no guide as to whether AH was reinstructed subsequently.

[44]The fees were assessed down because AH was charging much more than the appropriate rate allowed on a legal aid assessment for counsel advising and drafting in 1994. It would seem that the chambers were charging the same rates for other counsel since AH charged £125 for advising on quantum and amending particulars of claim in 1994 and Mr Wagstaffe charged £125 for advising on quantum in 1996.

[45]There was over two years delay between the conclusion of the case and the assessment of costs. Moreover, there was seven years between the submission of a PoA application and the fixing of fees by AH’s clerk and the assessment of costs. There is no evidence that AH or her clerk were shown what might have been an error in omitting her fees for the work in 1998 from the claim for assessment or the assessment once it had been undertaken so as to have the opportunity of correcting the error or appealing against the error. 3. Conclusion

[46]The LSC were, on the basis of the documents available to them, entitled to recoup the net sum recouped. However, AH was not provided with the opportunity to seek to correct what may well have been an error in the under-assessment of her fees claimed in the first period of her involvement and in the non-assessment of her fees in the second period that she claimed she was involved. AH was unable to put forward such defences as these errors give rise to due to the delays and loss and absence of relevant documentation that have occurred.

[8]Gaul 1. Chronology

[47]The chronology for the Gaunt claim is as follows: 22.9.93. Assisted party applies for legal aid to pursue a claim for trespass, damages and an injunction relating to adjoining premises to those she was acting in relation to as an administrator of her father’s estate. 18.11.94. Certificate transferred to Iver Denfield, solicitors. Prior to transfer, a court hearing had led to an order for rent to be paid into court and counsel had been instructed from chambers unconnected with AH. For the work undertaken up to transfer, the previous solicitors submitted a bill for assessment of £4,745.73 profit costs and £1,053.88 plus VAT for counsel’s fees. 2.12.94. Hearing at county court. 2-day trial fixed for February 1995 vacated. Denfield advise LSC that new counsel (presumably AH although name not mentioned) to be instructed, initially to advise on current dispute and on wider issues. 16.4.06. AH first PoA of £1,652.35. 22.4.07. AH second PoA of £2,335.30. 23.9.97. AH third PoA of £3,807.01. 4.3.99. Certificate discharged, reason not disclosed. Case concluded. 8.00. Costs assessed by court 29.8.00. Legal Aid taxation certificate. Counsel’s fees, included in total sum of £2,590.79, included in the certificate, of which £1,004.64 was for the two counsel instructed prior to November 1994. Presumably, the balance was included for AH since she was the only other counsel it appears was instructed. 21.9.00. CLAIM 1 submitted by Denfield. 22.12.00. CLAIM 1 returned by LSC because fees assessed for AH not supported by a fee note. 11.7.01. LSC recoup all PoA from all three counsel including the three PoA to AH totalling £7,796.16. 21.11.01. Net fees due to first two counsel (i.e. £1,004.64 less PoA) authorised to be paid by LSC without a final certificate.

[2]Comment

[48]This claim arises from a case where Mr Denfield took over a long-running civil damages claim and instructed AH to advise and act in place of the previous counsel. The case was clearly complex but no papers from Denfield’s file have been obtained so that what Denfield and AH did in the period between November 1994 and March 1999 is a complete blank. Whatever it was enabled Denfield to have fees totalling about £1,500 assessed in favour of AH and, for his firm, profit costs of about £3,100 (£7,903.31 assessed less £4745.73 submitted by previous solicitors). AH’s chambers must have submitted a fee note for her fees which would have been used to support the bill submitted to the court for assessment. Since AH had received £7,794.66, no further payment would have been made and she would have been properly recouped for the balance. However, since Denfield could not produce a copy of AH’s fee note (it is not known why and it is not clear that the firm ever sought a further copy from AH’s clerk since AH had retired by mid-2001), no CLAIM 1 was ever submitted and a total recoupment made without any set-off for the sum assessed as due to AH.

[49]It would seem that AH’s clerk was not provided with a copy of the assessment to enable a challenge to be made if appropriate. In any event, it is unlikely that any challenge would have been forthcoming from AH’s clerk in mid-2001. It is not known what work AH claims to have done or why the PoA were so much greater than the assessed sum. The possible answer is a combination of insufficient being assessed, work charged for under the certificate which was required but fell outside its scope, work which was not assessable and the excessive charging rates submitted on legal aid work by AH’s clerk. 3. Conclusion

[50]AH has a possible claim for about £1,500 of the sum recouped and the LSC has a good case for recovering the balance subject to succeeding on the question of construction of regulation 100(8), there apparently being no finally valid CLAIM 1 form albeit a completed final assessment took place, and on procedural questions. AH’s defence is undoubtedly hampered by having no recourse to documents relating to this case and to the make up of her PoA and fee note claims and to the details of the assessment of her fees by the court.

[9]Woodage 1. Chronology

[51]The chronology for the Woodage claim is as follows: The only details available about this claim are that AH was instructed by the certificate holder, McAra & Co, Solicitors, to represent the assisted party who was the respondent in an apparently complex financial arrangements hearing that lasted two days and involved ten bundles of documents. AH was first instructed only five days before the hearing. The dispute included a claim to sell one property and share the proceeds of sale and to transfer the petitioner’s interest in another property to the respondent. The work undertaken by AH and the fees being charged are set out in a document prepared by the costs draftsman as a working draft for the claim for her fees in the final bill being prepared for final assessment. This draft was obtained by the LSC’s solicitors from the solicitors prior to the trial of this claim. This draft document has been used to prepare this chronology. 10.5.98. Telephone conference £250 claimed. 10.5.98. Brief delivered, counsel’s preparation, £1,500 claimed. 14.5.98. Conference, £450 claimed. 15.5.98. Brief fee, £3,500 claimed. 16.5.98. Refresher, £2,500 claimed. 25.5.98. Opinion, £350 claimed.

[04]08.98 AH instructed by McCara in connection with a proposed appeal and stay application on the proceeds of sale. 17.8.98. AH first PoA of £1,321.88. 3.9.98. Further hearing, fee charged unknown. 18.9.98. Further hearing, fee charged unknown. This hearing concluded the case. 24.9.98. AH second PoA of £10,442.81. 28.11.98. Cost draftsman’s letter to Solicitors for respondent:

“Serious difficulties completing the bill of costs in view of counsel’s reluctance to provide fee notes for the hearings … Mrs Henthorn’s clerk has been contacted by both myself and Ann on several occasions but with no success. I wonder if you could bring some pressure to bear as it is obviously in everyone’s interest to have the bill taxed as soon as possible.”

Date unknown Costs assessed by court 5.9.01. LSC receive assessed bill which provides for counsel’s fees totalling £5,375.63 as shown on screen dump. 8.10.01. LSC recoup the total of the PoAs from AH of £11,764.69 and gives her credit against that recoupment for her assessed fees totalling £5,375.63. Total net sum recouped was £6,389.06. 2. Comment

[52]It would seem that eventually a fee note from AH was obtained from somewhere which enabled the bill to be assessed. The final payments that were made to both the solicitors and counsel must have been preceded by a final assessment and a CLAIM 1.

[53]There are no details of counsel’s fee note or the basis of the assessment of counsel’s fees or as to when counsel’s fee note was first submitted, why it was not readily available to the costs draftsman despite several requests and how and when it was finally obtained. Given the fees that were apparently being charged seem somewhat high for a four-day hearing of a matrimonial property dispute involving relatively modest sums, much of the shortfall recouped was probably the excessive element in the fee charged. However, it is possible that, whether by the default of AH’s clerk in not submitting the appropriate documentation or by the instructing solicitor, insufficient details were submitted to the assessment process to enable the work carried out by AH to be assessed. 3. Conclusion

[54]The LSC should succeed on its substantive claim but AH might have been able to establish a larger, possibly a significantly larger, set-off to the sum recouped to take account of items of work or rates of remuneration which could and should have been assessed for the work she carried out which were omitted from the final payment to her.

[10]Hyman 1. Chronology

[55]The chronology for the Hyman claim is as follows: 13.9.93. Legal Aid certificate granted to assisted party to take counsel’s opinion as to merits of claim in a contract/employment of film script writer dispute. Certificate issued to David Lewis, Solicitors. 17.04.94. Other counsel in other chambers (Mr Raymond) advised on merits. 19.04.94. Application to extend legal aid certificate to cover proceedings. 15.06.94. Limitation removed.

[1995]Certificate transferred to Christou, solicitors. 24.04.95. Writ issued. 23.10.97. Other counsel in yet other chambers (Mr Daiches) advised that the claim only had a 25% chance of success. 13.9.98. AH recorded as receiving first PoA of £1,105.97.

[1999]Certificate transferred to Sheridans, solicitors. 18.10.99. AH recorded as receiving second PoA of £5,639.99.

[07]04.00 Third counsel (other than AH) Mr Critchley received PoA of £1,421.02. 16.8.00. Legal Aid certificate discharged.

[2001]Costs assessed by the court. 5.2.02. CLAIM 1 submitted. LSC recoupment of £6,745.96 being the two PoAs recorded as having been made to AH. No fees certified in AH’s favour and none, apparently, were applied for by Sheridans. There is no record of a fee note having been submitted by AH or for one having being requested by Sheridans before the assessment was submitted to the court.

[2]Comment

[56]This is a remarkable claim since there is no record of AH’s involvement in the claim at any stage in its seven-year history. The LSC obtained not long before the trial nearly 100 pages from the files of the third of the three firms of solicitors who held the certificate in succession until its discharge on 16.8.2000. These pages give a reasonably clear explanation of the history of the action. Two counsel gave lengthy opinions on the merits to, respectively, the first and second solicitors and a third counsel received payment, probably having been instructed by the third solicitors to advise. At the time when AH is recorded as having received two PoAs, in 1998 and 1999, very little was taking place in the action and the transfer to the third solicitors occurred sometime in 1999. Moreover, an assessment of costs took place leading to the recoupment and it is clear that there was no reference to AH or to any claim for fees on her behalf in that assessment process.

[57]Thus, since AH was paid on account, it was as a result of a claim in a case in which neither she nor anyone else in her chambers appears to have been instructed at any stage. It is unlikely that a PoA could have been applied for by AH or her chambers if she had not been instructed since there would be no knowledge of the case or of the solicitors who held the certificate. There may have been an error by the LSC in making two PoAs unilaterally and which had not been applied for or a recording error within the LSC. If AH was instructed, it would have been by Lewis & Co by whom she was frequently instructed.

[58]There are now no other documents in existence save those disclosed and the screen dumps that record the payments that were made to AH or which show that they were made. However, AH now concedes that she received the PoAs. All the relevant LSC documents were disposed of four months after the accounting records were put into the computerised records and AH has no documents and cannot find any reference to the relevant payments in her bank statements. It is possible that the LSC records are in error in that these PoAs were wrongly credited and paid to AH by those inputting the data originally or that AH was in fact instructed and did little or no work and that PoA fees were applied for despite her having undertaken no work.

Conclusion

[59]On a balance of probabilities, AH was paid two PoAs in a case in which there is no other record of her having been involved. However, she is now being recouped following a non-application for any fees for her in the final assessment. Why no fees were applied for is not known. Moreover, AH is clearly greatly disadvantaged in pursuing a defence to rebut the claim given the complete absence now of any documents to show how she came to be paid the PoAs in circumstances when she does not appear ever to have been instructed in the case. The relevant payments she wishes to investigate and the circumstances of those payments occurred, respectively, twelve and eleven years ago. There was no assessment of AH’s fees in a case where she allegedly received two PoAs. That was a procedural impropriety since AH does not appear to have been given an opportunity to either show that she had not received any PoAs or that she should not be assessed as nil.

[11]Brackenbury 1. Chronology

[60]The chronology for the Brackenbury claim is as follows:

[1985]Certificate issued to assisted person. Road traffic personal injuries claim.

[04]88 AH advised in conference. Conference billed in subsequent fee note as £80.00. ? 1988 Payment into court accepted. Case concluded. 19.01.90. Certificate discharged.

[09]90 Costs assessed by court. 26.09.90. Assisted party’s Solicitor submits report, counsel’s fee notes and certificates of taxation. 10.10.90. LSC returns allocatur to solicitor with a request that the court should amend the way that VAT is recorded. 14.02.91. AH’s fee note. The one entry is for the conference on 4.4 88. 21.09.92. AH PoA of £69.00. Date unknown Costs assessed by court. 19.04.94. LSC writes to solicitor seeking the amended allocator. If this is not returned within 28 days, the LSC will close the account and recoup all PoAs. 28.11.02. LSC recoup £69.00 and credit AH with £111.63.

[2]Comments

[61]No claim is any longer being made under this certificate since the PoA was less than the sum AH was finally assessed for her fees. The difference between the assessed sum and the PoA sum, being £42.63, has been credited against the LSC total recoupment claim.

[62]The details of this claim, although they show delay which is extreme even by the standards of LSC PoA recoupment claims, are instructive. In summary, a simple PI claim led to the settlement of the claim and the conclusion of the case by way of the assisted party’s acceptance of a payment into court, presumably on AH’s advice in conference, about three years after the certificate was issued. The certificate was discharged eighteen months later and the costs were assessed by the court six months after that in September 1990 and the solicitor immediately reported to the LSC on the conclusion of the case and also sent in the assessed final bill to the LSC. The allocatur was promptly returned because the court had made an error in recording the VAT that was payable. The solicitors failed to return the allocatur and AH applied for and was paid a PoA in September 1992 and the LSC wrote chasing the corrected allocatur in April 1994 with a threat to recoup all PoA, being nearly £1,800 paid to the solicitor and £69 paid to AH, if this was not returned within 28 days. Nothing happened for eight and a half years until, presumably, the solicitor returned the requisite paperwork and/or the LSC proceeded to close the account without it. This led to recoupment of the PoAs and payment or crediting of the finally assessed sums in relation to AH and the solicitors respective payments.

[63]The result of this is that the recoupment occurred 14 years after the case was concluded, 12½ years after the certificate was discharged and 12 years after the bill was assessed by the court. It also occurred 8½ years after the LSC made an unfulfilled threat to recoup all PoAs and close the account, presumably without making any payment to either solicitor or AH for the work undertaken on this case, if the necessary paperwork was not returned within 28 days. The LSC was, of course, unable explain what ultimately triggered the return of the necessary paperwork, the final payment to the solicitor and the crediting of AH’s account and the closing of the account under this particular certificate. 3. Conclusion

[64]The LSC claim to take the benefit of the additional payment and set it off against unrecovered recoupments in other claims. The chronology summarised above highlights the surprising consequence, from the point of view of limitation, thrown up by the LSC’s interpretation of the effect of the Limitation Act on the PoA recoupment regime. On this interpretation, the six-year period for claiming recoupment only started to run on 28 November 2002, 14 years after the case was concluded and the claim would only become time-barred 20 years after it was concluded. This for a claim which enabled the assisted party to recover £15,000.

[65]The overall conclusion is that AH takes the benefit of the sum of £42.63 which was credited to her on 9 December 2002 following the recoupment on 28 November 2002.

[12]El Beheri 1. Chronology

[66]The chronology for the El Beheri claim is as follows:

[1995]Certificate issued. Solicitor holding certificate: Gerrard GM Ferguson. 08.09.97. AH first PoA of £3,238.59. 22.04.98. AH second PoA of £418.60 09.10.98. AH third PoA of £1,754.84. Date unknown Case concluded by settlement or court order. Date unknown Costs assessed by court. 24.03.03. Solicitors’ final bill authorised. Solicitors’ PoA totalling £1,647.46 recouped and the certified sum of £1,173.60 credited to the solicitors. Counsel’s fees certified as nil. The total of sums PoA of £5,441.73 recouped and “nil” credited to AH.

[2]Comment

[67]There are no other details provided about this claim. It is therefore to be inferred that a CLAIM 1 form was sent to the LSC by Gerrard G Ferguson in March 2003 and that firm had at some date prior to sending the CLAIM 1 form had submitted their bill of costs for final assessment and the court had assessed the costs and issued a costs certificate. Since AH was credited with nothing following the recoupment of her PoAs, it is to be inferred that the solicitors’ bill contained no entry for AH’s fees or did not have with it AH’s fee notes. Since AH had closed her chambers prior to the assessment process and her clerk was no longer active, any attempt by the solicitors to obtain copies of her fee notes prior to submitting the bill for assessment or to notify her of the assessment of her fees as nil would not have obtained a response. It is not known why the solicitors did not have in their possession the fee notes submitted during the case. An alternative explanation is that the LSC discharged or revoked the certificate and assessed the fees

Conclusion

[68]If the computer records are accepted at face value, the LSC is entitled to recoup the entirety of the PoAs subject to procedural defences.

[69]However, the claim raises the legal issue as to whether the LSC is entitled to recoup from counsel the entirety of the PoA where the subsequent court assessment assesses counsel’s fees as nil without investigating why counsel has not had any fees assessed in his or her favour and making an assessment of the fees that should have been assessed if there is no satisfactory explanation for the solicitors failing to include any fees for counsel in the bill submitted for assessment. Furthermore, on a balance of probabilities, the case was concluded before 1 February 2000.

[13]Crosby 1. Chronology

[70]The chronology for the Crosby claim is as follows:

[1994]The certificate was issued to the assisted party to claim damages in a county court claim. The certificate was issued to Blaser Mills, Solicitors. 17.11.95. AH appeared at a specific discovery application. Fee claimed: £495, assessed fee: £300 Only the principal fee reductions are listed in the chronology. . 20.02.96. AH claimed £350 for long conference fee. Assessed fee: £200. 10.09.96. AH claimed £385 for conference fee. Assessed fee: £200.

[01]05.97 AH claimed £2,500 brief fee for significant procedural application. Assessed fee by the court on the final assessment: £1,500. 07.05.97 AH claimed £950 brief fee for procedural application. Assessed fee: £400. 02.07.97 AH first PoA of £2,606.97. 11.09.97. AH clams £1,750 brief fee for adjournment of trial application. Assessed fee: £1,000. Date unknown Conclusion of the case by settlement or court order. Assisted party recovers £85,158.04 in damages. 02.04.98 AH’s fee note rendered to solicitors in total sum of £11,883.95. 22.04.98. AH second PoA of £1,270.55. 30.06.99. AH third PoA of £9583.60. 13.01.00. AH fourth PoA of £2,722.19. Total PoAs applied for and paid: £16,183.28. 26.07.00. Blaser Mills wrote to the LSC seeking confirmation that AH had been paid each of the four PoA listed above in the sums set out above. The LSC confirmed that these payments were made on 10.8.2000. 21.08.00. Blaser Mills enclose a CLSADMIN3 form and ask:

“… on the assumption that the figures are correct in relation to the payments made to counsel Aisha Henthorn, we would appreciate your letting us know what steps can be taken to recover the excess payments made to her. This is a problem that we have had with Mrs Henthorn on previous occasions where she has failed to reimburse us what is due to us.” 30.08.01. SC reply to Blaser Mills that: “Ms Henthorn will be recouped further to the submission of your CLAIM 1. She will then be paid in accordance with the CLAIM 1 you submit as taxed by the courts.”

Date unknown Costs assessed by court. 27.03.03. CLAIM 1 was received by the LSC. AH’s assessed total fee: was £7,443.65. AH recouped a net figure of £8,739.63, being the difference between her four PoAs and total assessed fee.

[2]Comment

[71]The basis of claim is two-fold:(1) AH claimed and was paid £4,299.33 more than she claimed in her fee note (£16,183.28 claimed in fee note, £11,883.95 claimed and paid as PoAs).

(2) AH was assessed as being entitled to £4,440.30 less than she had claimed in her fee note (£11,883.95 claimed in fee note, £7,443.65 assessed and credited to her by LSC).

[72]The recoupment claim appears to be justified in full in the sum of £8,739.63 as claimed under regulation 100(8). What is noteworthy is:(1) The case must have been settled soon after the adjournment of the trial in September 1997 a few days before the trial was due to start since AH’s fee note that was used as the basis of the final assessment was rendered in April 2008. There was, therefore a delay of about 2¾ years between the conclusion of the case and the submission of the bill for assessment and a further 2½ years before the solicitors submitted the assessed bill with a CLAIM 1 form in March 2003 to the LSC.

(2) Although notified of overpayment, the LSC did not seek to recoup or to write to AH admonishing her excessive overpayment for 2½ years due to the delay in submitting the CLAIM 1 form on the apparently erroneous basis that a recoupment could not be recovered until the CLAIM 1 form was received whereas regulation 100(8) requires recoupment as soon as the assessment has been made. In this case, the LSC could have obtained the assessed sum in favour of AH without waiting for the CLAIM 1 form, or could have chased up the CLAIM 1 form so as to have been able to make the first recoupment claim soon after August 2000. 3. Conclusion

[73]Subject to procedural defences, the claim is recoverable in full.

[14]Jones 1. Chronology

[74]The chronology for the Jones claim is as follows:

[1997]Certificate issued to the assisted party to claim damages in the county court. Certificate held by Paul, Berg & Taylor, solicitors. 18.03.98. AH first PoA of £9,601.22. 10.08.98. AH second PoA of £8,614.22.

[02]08.99 AH third PoA of £12,775.46. Date unknown Conclusion of the case by settlement or court order. Assisted party recovers £11,000 in damages. Date unknown Costs assessed by court. 01.04.03 AH recouped PoA of £30,990.90. 01.04.03 Other counsel(s) recouped PoA of £2,445.47. 01.04.03 AH certified £881.25. LSC credits this sum against AH’s recoupment liabilities. Net sum recouped in this case: £30,109.65. 01.04.03 Other counsel certified assessed sum of £350.00. 01.04.03 Other counsel certified assessed sum of £2,555,63. Total certified as due to counsel: £3,786.88. 01.04.03 Sum certified as due to solicitors: profit costs of £8,684.36 and disbursements of £3,115.35 being a total of £11,799.51.

[2]Comment

[75]No further details were provided or proved about this claim. The overall claim is the largest made in these proceedings and accounts for nearly one third of the total sum claimed. The huge disparity between AH’s PoAs of £30,990.90 and the final sum assessed as being due to her of £881.25 needs some explanation, particularly as the case resulted in a judgment or settlement in favour of the assisted party. There is no evidence as to whether there was a costs limit on the certificate in a case in which the overall costs assessed in favour of the solicitors and counsel was £9,306.32, the recovery was £11,000 and the total sum PoA was £42,698.31. It would also seem that there was a lengthy period of time that elapsed between the conclusion of the case and assessment and, possibly, a further lengthy period between assessment and the submission of the CLAIM 1 form since there was a six-year period between the issue of the certificate and the submission of the CLAIM 1 form. There is no other detail as to the identity and role of the other two counsel in this case.

[76]There is no substantive defence available to AH save a wish to investigate the background to this claim given the unusually large disparity, even by the standards apparently pertaining to these claims, between the PoAs and the finally assessed fee. 3. Conclusion

[77]Subject to procedural defences, the LSC claim succeeds on the balance of probabilities. AH conceded through her counsel’s closing submissions that she received the PoAs, a concession which was correctly made on the basis of the evidence given about the LSC accounting system. On a balance of probabilities, the case was concluded before 1 February 2000.

[15]Baptiste 1. Chronology

[78]The chronology for the Baptiste claim is as follows:

[1992]Assisted party issued with certificate to pursue a claim for trespass, money had and received and mortgage arrears. Certificate issued to Fairchild Greig & Co. 26.01.93. AH settles draft particulars of claim.

[06]04.93 AH’s fee note sent first time. Fee claimed £528.75. AH’s address given as Oxhey View, her residence until 1998. She acquired her Watford chambers address later in 1993. 06.05.93 AH first PoA of £396.96. 24.01.94. AH’s fee note sent second time. 28.06.94. AH second PoA of £396.62

[05]04.95 AH’s fee note sent third time. 24.08.95. AH third PoA of £374.49. 19.03.98. AH fourth PoA of £193.89. Date unknown Case concluded by settlement or judgment. No damages recovered. 407. AH’s fees in fee note of 05.04.94 used for assessment. The address has been amended in manuscript and the inserted address is AH’s Watford chambers which she acquired in 1993. Fee charged for settling particulars of claim reduced from £450.00 plus VAT to £225.00 plus VAT.

[01]04.03 AH recouped total of PoAs of £1,361.96. 01.04.03 Other counsel recouped PoA of £307.60. 01.04.03 AH’s fees assessed as £264.38, other counsel fees assessed as £2,878.16.

[2]Comment

[79]There appears to be a large delay between the settlement of the claim and assessment and/or between assessment and submission of the CLAIM 1 form. The claim does not appear to have gone to trial given the overall total of counsel’s fees only amounting to £3,142.54 and the solicitors profit costs being £13,205.11 with disbursements of £384.12.

[80]AH could not explain why the second, third and fourth PoA totalling £965 were submitted and paid after she had completed her work on the case and been paid the full PoA allowed (subject to small further payments in the subsequent two years). 3. Conclusion

[81]Subject to procedural defences, AH has no defence to this claim. She is, however, unable to investigate the payments applied for and made to her and ascertain whether the appropriate fee was claimed in the assessment and appropriately assessed down. On a balance of probabilities, the case was concluded before 1 February 2000.

[16]Ward 1. Chronology

[82]The chronology for the Ward claim is as follows: 1981 Certificate issued in favour of the assisted party. Certificate issued to Lee Barnett-Needham, solicitors. Personal injury claim. 30.11.88 AH first undertook work. She advised in telephone conference and then in conference. 24.04.89 First fee note first rendered to Lee Barnett-Needham by AH from previous chambers in Kings Bench Walk. 10.09.90 Second fee note rendered to Pullig & Co. Changes to fees previously billed. 26.04.91 Third fee note rendered to Pullig & Co. Changes to fees previously billed. 09.08.93 Last item of work undertaken by AH that is billed in her fourth fee note. 11.04.96 AH first PoA of £6,459.18. 12.04.96 AH second PoA of £6,366.10. 24.04.97 Fourth fee note rendered to David Lewis & Co. Changes to fees previously billed. Total sum billed: £27,345.87. Date unknown Claim settled for, or the assisted party recovered at trial, £35,132.32. 16.05.98 AH third PoA of £9,565.90. 30.05.99 Mr Lewis, sole practitioner solicitor practising in the name of David Lewis & Co, entered into an Individual Voluntary Arrangement. Date unknown Costs assessed by court. 11.09.03 AH recouped £22,391.18. No other counsel recouped, total of counsel’s fees recouped was £22,391.18. 11.09.03 AH certified following assessment a total of £8,474.42. LSC credit this against recoupment. Other counsel(s) certified a total of £14,558.24. This total sum of £14,558.24 was paid in four different payments on 11.9. 2003 suggesting that four other counsel were also instructed, presumably in the period after 9.8.1993.

[2]Comment

[83]There are three separate complaints made about AH’s conduct, or the conduct of her clerks in preparing PoA applications and fee notes:(1) The sums billed and the items billed in the first fee note were altered upwards and added to in the second fee note, altered again in the third fee note and altered for the third time in the fourth fee note.

(2) The PoA that were claimed exceed in total the sum finally assessed in AH’s favour by nearly 300%.

(3) The fee levels charged in the fee notes were excessive so that the court assessed the fees being charged down from £27,345.87 to £8,474.42.

[84]The explanation for the changes from one fee note to the next could have resulted from a dishonest attempts to increase AH’s recovery from the fund but could equally have resulted from four different and inexperienced or inadequately trained clerks preparing the fee note from inadequate records. The first fee note was prepared in 1989 by AH’s King’s Bench Walk chambers prior to her setting up her chambers in Watford, the second in 1990, probably by her at a time she was setting up her chambers and had no clerk, the third in 1991, probably prepared by her newly appointed clerk and the fourth in 1997 by the fees clerk who prepared her fee notes who was different from the previous clerk.

[85]There are no details of what was submitted for assessment in relation to AH’s fees, how AH’s fees claims were assessed, why they were reduced or disallowed, when the assessment took place or as to whether AH or her clerk were given an opportunity to make submissions as to any downward assessment. In addition, there are no details of the work undertaken by other counsel. It was therefore not possible for AH to make any meaningful challenge to this claim.

[86]The absence of information arises, in part, due to Mr Lewis’s IVA and the closing of his practice in 1999. The case was, therefore, clearly concluded before May 1999 since it was not transferred to other solicitors. 3. Conclusion

[87]Subject to procedural defences, this claim would succeed on the balance of probabilities. However, AH was unable to mount any defence given the extensive delays that have occurred and the current non-existence or non-availability of any relevant documents.

[17]Shahidullah 1. Chronology

[88]The chronology for the Shahidullah claim is as follows:

[1990]Certificate granted to the assisted party and issued to Cross & Co. Dates unknown AH carries out work ultimately assessed at £734.37. Dates unknown Court assessment of AH’s fees. 12.02.98. AH first PoA of £550.78 25.04.00. AH second PoA of £3,497.46 13.10.05. LSC recoup both PoAs totalling £4,048.24 from AH. 13.10.05. AH credited with £734.37.

Cited in 1 later judgment

Legal Services Commission v Henthorn 2011