Parkes v Legal Aid Board
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 1994 |
| Date | 13 May 1994 |
| Court | Family Division |
Family Division
Before Mr Justice Thorpe
Legal aid - costs - Board entitled to property charge
The Legal Aid Board was entitled to a charge over property in respect of costs incurred by a common law spouse defending an originating application brought under section 30 of the Law of Property Act 1925
Mr Justice Thorpe so stated in the Family Division refusing to grant Anita Parkes a declaration sought by originating summons that the board was not entitled to a charge pursuant to section 16(6) of the Legal Aid Act 1988 over her property in respect of costs incurred on her behalf in earlier proceedings in which she was a defendant.
Mr Giles Eyre for Miss Parkes; Mr Charles Utley for the board.
MR JUSTICE THORPE said that in 1986 Miss Parkes and Mr Bradbury had purchased property in joint names. In June 1989 after the birth of a child Mr Bradbury left and issued an originating application for the sale of the property in which Miss Parkes and the child still lived. The issues were compromised by a consent order in March 1990.
His Lordship found as a matter of fact that in the earlier proceedings there was no issue between Miss Parkes and Mr Bradbury as to the extent of their beneficial interest raised by the originating application and settled by the compromise.
On the facts, the only issue between the parties which was compromised was the manner in which the trust for sale should be executed. It followed that the compromise did not come to preserve or recover for Miss Parkes ownership of the essential property in any proportion.
In consequence the Legal Aid Board's defence to the current proceedings in which a declaration was sought had to rest on the contention that although beneficial ownership was not enlarged or enhanced by the compromise her right to possession was significantly extended.
Section 16(6) of the 1988 Act did not define whether what must be recovered or preserved was ownership, or whether the recovery or preservation of rights of exclusive possession of property were sufficient to give rise to the charge.
The question was to be resolved in the light of observations made by Lord Simon of Glaisdale in Hanlon v The Law SocietyELR ((1981) AC 124, 180F) which were applied in Curling v The Law SocietyWLR ((1985) 1 WLR 470, 482H) by Lord Justice Oliver. Those judgments had fundamental significance in enlarging the interests in property that might give rise to a...
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McPherson v Legal Services Commission
...within the definition of property “recovered or preserved” in section 16(6) of the 1988 Act. Thorpe J (whose judgment is reported at [1994] 3 FCR 234) held that there had been no contest between the co-owners as to the extent of their beneficial interests, but that the right of exclusive po......