R v The Law Society, ex parte Sexton

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE WALLER,LORD JUSTICE O'CONNOR,SIR DAVID CAIRNS
Judgment Date14 Jul 1983
Judgment citation (vLex)[1983] EWCA Civ J0714-6
Docket Number83/0340

[1983] EWCA Civ J0714-6

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

Royal Courts of Justice,

Before:

Lord Justice Waller

Lord Justice O'Connor

Sir David Cairns

83/0340

CO/224/83

Re: Legal Aid Act 1974

Re: Legal Aid (General) Regulations

Re: Application by Elizabeth Sexton for Judicial Review

The Queen
and
The Law Society

MR N. LEY (instructed by Ralph Haeems & Company) appeared on behalf of The Appellant.

MR D. MATHESON (instructed by The Law Society) appeared on behalf of the Respondents.

1

LORD JUSTICE WALLER
2

In this case the appellant, Mrs Sexton, applied to the Divisional Court for an Order by way of judicial review that the Law Society were wrong in their construction of Section 9 of the Legal Aid Act and the Legal Aid (General) Regulations, in coming to the conclusion that they had no power to transfer a charge arising under Section 9 to other property.

3

Mr Justice Woolf, hearing that application, did not hear argument at all because the parties agreed that the matter was concluded, by the decision of this Court, in Simmons v. Simmons. Mr Justice Woolf refused the application so that the appellant could appeal to this Court in the hope that a Court of three judges would come to a different conclusion from the Court in Simmons v. Simmons, which only consisted of two judges.

4

The original Order of Mrs Justice Booth, out of which this application arises, and was made on the 5th October, 1982, was as follows: "By consent it is ordered that (1) the petitioner do pay to the respondent a lump sum of £15,000 by three instalments of £5,000 each at six monthly intervals, the first to be paid" on a particular date, and other dates to be arranged. "(2) the respondent shall forthwith transfer to the petitioner absolutely her legal and beneficial interest in the property". So that the effect of the decision, albeit by consent of the parties, was that the share which Mrs Sexton had in the matrimonial home was to be transferred to her husband, and in return he was to pay her £15,000.

5

Both parties were legally aided, and the Law Society had a charge on this sum of money as security for the costs incurred by the Legal Aid Fund. The appellant asked the Law Society to transfer the charge from the money to the house.

6

It is submitted on her behalf that the money is property; that it can be subject to a charge and that the Law Society in their discretion can transfer the charge from the money to the house. The Law Society say that they have no discretion in the matter and that money recovered, save for £2,500 must, by Regulation 96 (d) be paid ultimately to the Law Society.

7

The matter is primarily governed by Section 9, subsection 6 of the Legal Aid Act 1974, which is in these terms: "Except so far as regulations otherwise provide, any sums remaining unpaid on account of a person's contribution to the Legal Aid Fund in respect of any proceedings and, if the total contribution is less than the net liability of that fund on his account, a sum equal to the deficiency shall be a first charge for the benefit of the Legal Aid Fund on any property (wherever situated) which is recovered or preserved for him in the proceedings".

8

So this sum of £15,000 is money recovered in the proceedings. It is common ground before us that money is property and, in personal injury actions, the Law Society frequently exercise their charge on the monies recovered as damages.

9

I must next refer to the regulations which are contained in the Legal Aid (General) Regulations 1980. There are three important regulations to which I wish to refer. First of all, Regulation 97 provides for vesting an enforcement of the statutory charge and, by subsection (1) it provides: "Any charge on property recovered or preserved for an assisted person arising under Section 9 (6) of the Act shall vest in the Law Society. (2) The Law Society may enforce any such charge in any manner which would be available if the charge had been given inter partes".

10

Mr Ley submitted that the case of Hanlon v. The Law Society (1981) A.C. 124 was a case where it was held that charges could be transferred from one property to another and that, in the circumstances of this case, the Law Society could transfer the charge from money to house. In the case of Hanlon, a number of matters were raised with which we are not concerned; but their Lordships did decide that where there was a house, the subject of a Property Adjustment Order, and a house to which their charge applied, the Law Society not only had a discretion to postpone the enforcement of that charge—and a discretion which they frequently exercised—but also had a discretion to transfer the charge on the matrimonial home in a proper case from one property to another.

11

Mr Ley's submission to us was that was something which could be done in this case. But unfortunately there are other regulations in the 1980 Legal Aid Regulations, which deal specifically with money. In this regard I would refer to Regulation 88, which is headed: "Moneys Recovered to be paid to Solicitor or the Law Society", and it provides:—I do not read the whole of it—"subject to Regulations 90 and 96, all moneys payable to an assisted person…. shall be paid or repaid, as the case may be, to the solicitor of the assisted person or, if he is no longer represented by a solicitor, to the Law Society……".

12

Regulation 91, which is entitled "Solicitor to pay moneys recovered to the Law Society", is the Regulation which is critical in this case. That Regulation provides: "By subsection (1) "An assisted person's solicitor shall forthwith—(a) inform the appropriate Area Committee of any property recovered or preserved for the assisted person; and (b) subject to paragraph (2) pay all moneys received by him by virtue of an Order or agreement made in the assisted person's favour to the Law Society".

13

So, subject to paragraph (2) the money having been paid to the Solicitor, he...

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2 cases
  • Simpson v The Law Society
    • United Kingdom
    • House of Lords
    • 20 May 1987
    ...ground that the courts below were bound by the decisions of the Court of Appeal in Simmons v. Simmons [1984] Fam. 17 and Regina v. The Law Society, Ex parte Sexton [1984] Q.B. 360 to dismiss the appellant's claim. They did so without hearing argument, but the Court of Appeal granted leave......
  • Curling v The Law Society
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 December 1984
    ...the report) echoed by Sir John Arnold P. in Jones and re-echoed by this Court in Simmons v. Simmons (1984) 1 A.E.R. 83 and in R v. Law Society, ex parte Sexton (1984) 1 A.E.R. 92 has still not been fulfilled. 72 In the vast majority of cases the matrimonial home constitutes the only family ......
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