Legal Services Commission v Rasool
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lady Justice Smith,Lord Justice Wilson |
| Judgment Date | 05 March 2008 |
| Neutral Citation | [2008] EWCA Civ 154 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 March 2008 |
| Docket Number | Case No: B3/2007/0193 |
[2008] EWCA Civ 154
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HALIFAX COUNTY COURT
DEPUTY JUDGE TAYLOR
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lady Justice Smith and
Lord Justice Wilson
Case No: B3/2007/0193
6HD00809
Robert Jay QC and Jess Connors (instructed by CKFT) for the appellant
Stuart Brown QC and Ian Pennock (instructed by Stachiw Bashir Green) for the respondent
Hearing date: 22nd October 2007
The undisputed facts
On 2nd March 1993 the respondent, Mohammed Rasool, was granted a legal aid certificate to be represented as plaintiff in an action for negligence and/or breach of contract. The proceedings were commenced and were defended. On 12th May 1999 the Legal Aid Board decided that he had failed to provide information or documents when requested to do so by the Board and his certificate was revoked under regulation 79 of the Civil Legal Aid (General) Regulations 1989, as amended (“the Regulations”). The requisite notices were served on him and on the solicitors representing him. On 30th June 1999 his appeal against revocation was dismissed. On 19th December 2001 the court taxed the costs incurred under his certificate in the sum of £17,333.70. On 21st January 2002 the solicitors who had represented him claimed payment of those taxed costs and they were duly paid by the Legal Aid Board on 26th April 2002. On the same day the Board sent a letter of demand to the respondent to recover those costs. It was, however, not until 14th March 2006 that the appellant, the successor to the Legal Aid Board, issued its claim for the “monies owed in respect of a legal aid certificate”.
The issue
Was the appellant's claim statute-barred under section 9 of the Limitation Act 1980? That depends upon whether time began to run from the date of revocation by the Legal Aid Certificate on 12 May 1999 in which event the claim is barred or from the date of the assessment of the costs on 19 December 2001 in which event time will not have expired. On 21st December 2006 Deputy Circuit Judge Taylor sitting in the Halifax County Court held that the claim was statute-barred. He dismissed the claim but gave leave to appeal because the issue could be a matter of significance to more than the present parties – indeed we were told, I confess to my surprise, that large amounts of money have not been collected in many cases where certificates have been revoked.
The limitation period
The time limit for actions for sums recoverable by statute is prescribed by section 9 of the Limitation Act 1980 as follows:
“(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 case of action accrued.”
It is common ground that this is an action to recover a sum recoverable by virtue of an enactment, namely the Legal Aid Act 1988 and the Regulations made pursuant to it.
The Legal Aid Scheme
The Legal Aid Act 1988 (“the Act”) is a successor to the Legal Aid Act 1948. Its purpose is neatly expressed in section 1 and, as one would expect from one of the pinnacles of the social welfare reforms enacted at the end of that decade, this was an Act:
“to establish a framework for the provision … of advice, assistance 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.”
It is, therefore, a system of Government funding for those who cannot afford to pay for that legal advice, assistance and representation.
The Legal Aid Board was established to secure that those services are available in accordance with the Act. The Board was required by section 6 of the Act to establish and maintain a separate Legal Aid Fund, out of which fund there was to be paid, pursuant to section 6(1)(a):
“… such sums as are, by virtue of any provision of or made under this Act, due from the Board in respect of remuneration and expenses properly incurred in connection with the provision under this Act, of advice, assistance or representation.”
This demonstrated the Board's responsibility for paying the solicitor's proper bills. The other fundamental rule is expressed in section 15:
“(6) Except in so far as he is required under section 16 to make a contribution, a legally assisted person shall not be required to make any payment in respect of representation under this Part and it shall be for the Board to pay his legal representative.
(7) The Board's obligation is under subsection (6) above is –
(a) in the case of representation provided in pursuance of a contract between the Board and the legally assisted person's legal representative to make such payments as are due under the contract; and
(b) in the case of representation provided otherwise than in pursuance of such a contract to make such payments as are authorised by regulations.”
The regulations with which we are concerned are the Civil Legal Aid (General) Regulations 1989 Statutory Instrument 1989 No. 339. These were amended from time to time, and as the events with which we are concerned are spread over a considerable period of time, it is necessary to establish precisely which regulations apply. Changes were introduced in 1994 by the Civil Legal Aid (General Amendment) Regulations 1994, Statutory Instrument 1994 No. 229 (the “1994 Regulations”). Regulation 1 of that amendment provides:
“(1) These Regulations … shall come into force on 25th February 1994.
(2) Subject to paragraph (3) below these Regulations apply to proceedings in respect of which a legal aid certificate is granted on or after 25th February 1994.
(3) [This does not apply here.]
(4) Proceedings in respect of which a Legal Aid Certificate was issued before 25th February 1994 shall be treated as if these Regulations had not been made notwithstanding any amendment issued under Part VII on or after that date.”
It is, therefore, quite clear that we must concentrate on the Regulations as they were before 25th February 1994 and I quote them below as they were when this certificate was issued in March 1993. If and in so far as I may refer to the 1994 amendments, I do so because some arguments have been addressed to us about their effect but I incline to agree with Mr Robert Jay Q.C., who appears in this court for the appellant, that the amendments do not alter the position significantly, indeed I would say they do not affect this case at all.
Part 10 of the Regulations deals with “Revocation and Discharge of Certificates”. Regulation 74 allows an Area Director to terminate a certificate by revoking or discharging it. Whereas a person whose certificate is discharged ceases to be an assisted person from the date of the discharge, a person whose certificate is revoked is deemed never to have been an assisted person in relation to those proceedings. The distinction between these two classes of assisted persons runs through the Regulations. The 1994 Legal Aid Handbook explains the difference between revocation and discharge in this way:
“Solicitors and counsel will be paid out of the Legal Aid Fund in either event. The difference lies in the effect on the assisted person who, on revocation, will [except when considering the rights of unassisted parties to claim costs out of the Legal Aid Fund] be regarded as never having been legally aided. He or she will have a legal liability to reimburse the Legal Aid Fund for any costs paid out on his or her behalf. On discharge, the assisted person will stay legally aided to the date of discharge.”
Regulation 79 gives the Area Director power to revoke a certificate if he is satisfied that the assisted person has failed to provide information or documents when required to do so under the Regulations. This is what happened in this case. Regulation 81 gives an opportunity to show cause against revocation but the decision with regard to an appeal shall be final. Regulation 82 provides for notification of revocation as follows:
“(1) Where an Area Director revokes … an assisted person's certificate, he shall, unless the costs have already been determined, forthwith issue a notice of revocation … and shall send the notice (together with a copy) to his solicitor, …
(2) A solicitor who receives a notice of revocation … shall either forthwith, or if an appeal has been brought under regulation 81(2) which has been dismissed, forthwith upon receipt by him of a notice of dismissal—
(a) serve notice of such revocation … upon any other persons who are parties to the proceedings, and
(b) inform any counsel, and if proceedings have been commenced, send a copy of the notice by post to the appropriate court office or registry.”
The effect of revocation or discharge is prescribed by regulation 83 to be that the retainer of solicitor and counsel is determined forthwith upon receipt of the notice of revocation or the notice of the dismissal of any appeal against such revocation or discharge: but if proceedings have commenced, the retainer of the solicitor shall not determine until he has sent to the appropriate court office or registry, and has served, any notice required by regulation 82.
Regulation 84 then provides as follows:
“ Costs to be taxed or assessed on revocation or dischargeUpon the determination of a retainer under regulation 83—
(a) the costs of the proceedings to which the certificate related, incurred by or on behalf of the person to whom it was issued, shall, as soon as is practicable after the determination of the...
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