ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE SOOLE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWISON
LORD JUSTICE McCOMBE
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Roger Mallalieu (instructed by Ashton KCJ Solicitors) for the Defendant
Hearing date: 4 April 2017
Crown Copyright ©
Lord Justice Davis:
"An individual for whom services are funded by the Commission as part of the Community Legal Service shall not be required to make any payment in respect of the services except where regulations otherwise provide."
By s. 22 (1) and (2) it is provided as follows:
"(1) Except as expressly provided by regulations, the fact that services provided for an individual are or could be funded by the Commission as part of the Community Legal Service or Criminal Defence Service shall not affect— "
(a) the relationship between that individual and the person by whom they are provided or any privilege arising out of that relationship, or(b) any right which that individual may have to be indemnified in respect of expenses incurred by him by any other person.
(2) A person who provides services funded by the Commission as part of the Community Legal Service or Criminal Defence Service shall not take any payment in respect of the services apart from—
(a) that made by way of that funding, and(b) any authorised by the Commission to be taken."
"(1) The following paragraphs of the regulation apply where funding is withdrawn by revoking or discharging the client's certificate.
(2) Subject to paragraphs (3) and (4), on the revocation or discharge of the client's certificate, the retainer of any supplier acting under that certificate shall terminate immediately.
(3) Termination of retainers under paragraph (2) shall not take effect unless and until any procedures under the Funding Code for review of the decision to withdraw the client's funding are concluded, and confirm the decision to withdraw funding.
(4) The solicitor's retainer shall not terminate until he has complied with any procedures under the Funding Code that require him to send or serve notices."
A funding Code was prepared in accordance with s. 8 of the 1999 Act. At Part C 51 this was, among other things, provided:
"51.1 The Director may withdraw funding by either revoking or discharging a certificate from such date as he or she considers appropriate in accordance with section 15 of the Criteria and these Procedures.
51.2 Where a certificate is revoked or discharged no further services may be provided under it from the date of the notice of discharge or revocation and the retainer of the solicitor shall cease in accordance with Regulations."
Outline of Submissions
"To my mind, this suggests the fallacious proposition that someone cannot be pronounced dead until it is established that he or she has been buried. The short answer, in my judgment, to this application is that no work for which the plaintiff was charged was ever done during the currency of the certificate... "
Ackner LJ went on (at p. 29B) to say that there was no obligation on a solicitor at the conclusion of work covered by a legal aid certificate "when the legal aid is, so to speak, spent" to have the certificate discharged. It was also made explicit that the conclusion in that case was much influenced, as stated at p. 294C, by the desire to avoid "a wholly unfair" result: p. 294C. Parker LJ and Sir David Cairns agreed with Ackner LJ.
"… a legal aid certificate does not have to be discharged if it is spent so that a litigant is no longer receiving assistance under the certificate. By analogy it seems to me that the existence of a legal aid certificate which has not been discharged is merely for present purposes evidential."
He went on to acknowledge that there might be difficulties in ascertaining the operative date when a person ceased to be an assisted party. He did not find that it would always be the date of notification to the opposing party (one of the candidates put forward). He also said that he would be "unhappy" about taking the date as being when the solicitor ceased to act, stating that that might be difficult to identify. He thought it unnecessary to adjudicate finally on the date, however, because he was satisfied in that case that it was "at least from the date that a previously legally assisted party starts to act in person": p. 935 B-D. It is thus clear from the conclusion in that case that the arguments of counsel, based on certainty, by reference to the date of actual discharge of the certificate were to be rejected.
"It would require the express language of unenforceability, eg as in s. 58 of the Courts and Services Act 1990, to have the drastic effect for which the [defendant] contends."
Lord Justice Lewison:
Lord Justice McCombe: