England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		25 August 2015

1. THE DEPUTY JUDGE: This is a renewed application for permission to bring judicial review proceedings following a decision on the papers by John Howell QC sitting as a Deputy High Court Judge on 13 May 2015 refusing permission to challenge a decision to register and subsequently not remove a statutory charge against the Claimant's property at 12 Kendry Gardens, Twickenham under section 10(7) of the Access to Justice Act 1999.
2. The charge arises out of the Claimant's legally aided matrimonial case against his now ex-wife as part of their divorce. The background facts, put briefly, are as follows. In September 2007, the Claimant's wife disappeared with their 2 year old son. In November 2007, his wife served an affidavit, including unsubstantiated allegations of violence, and shortly thereafter a matrimonial home rights notice was registered against the property. His wife applied for divorce.
3. In June 2008, having found solicitors Duncan Lewis and Co, the Applicant was granted legal aid for his matrimonial proceedings. In October 2008, as a result, as Mr Ahluwalia told me today, of his dissatisfaction with his previous solicitors, he changed to Fisher Meredith who represented him thereafter.
4. In October 2010, the Claimant and his wife were divorced with a decree absolute being issued by the court. In March 2011, on application the matrimonial homes rights notice was removed from the Land Registry. On 30 January 2013, the legal aid authority notified the Claimant that a statutory charge was to be registered against his property in relation to the legal aid paid in respect of the matrimonial proceedings.
5. Thereafter, on 9 April 2013, a pre-action protocol letter, was served and a response from the Defendant made on 22 August 2013. There were further letters from the Claimant to the Defendant on 25 January 2014 and 30 June 2014.
6. Mr Ahluwalia told me today that he had also been in contact with the Defendant in relation to those letters, to which there remain no response, in August 2014 and at the end of 2014, he said in the first week of December. These proceedings were issued on 4 March 2015.
7. The Claimant argues that the charge on his property does not fall within section 10(7) of the Access to Justice Act 1999 and is, therefore, unlawful.
8. The Defendant argues that it does fall within that provision and also takes two additional points, namely that the Claimant had an alternative remedy and there has been delay in challenging the decision of 30 January 2013 well outside the requirement of promptness and in any event three months such that permission should not be granted.
9. Section 10(7) of the Access to Justice Act 1999 states that a charge may be placed on property "recovered or preserved for an individual" where services funded under the civil legal aid scheme "in any proceedings or in any compromise or settlement of any dispute in connection with which the services were provided."
10. In this case, the Defendant argues that the Claimant's property, namely his house, was preserved in the funded matrimonial proceedings on the basis that the house was part of those matrimonial proceedings. It was in issue although ultimately the divorce proceedings came to a conclusion without any ancillary relief order being sought or made in respect of the Claimant's wife. It is said that the evidence shows that the Claimant's wife was at least initially seeking to put in issue the matrimonial property including the house and that the registration of the matrimonial homes rights notice was evidence of that. As a result of the compromise or settlement that ultimately led to the divorce without ancillary proceedings, it is said that the house was preserved for the Claimant.
11. Mr Ahluwalia, who represented himself with clarity, argued that the house was never subject to any proceedings. It was not part of the wife's claim. In any event, when, if at all, his home was a matter of discussion in the matrimonial proceedings, it was not at a time when he was represented by his current solicitors who made the legal aid claim. It was at worst a matter dealt with by his former solicitors, Duncan Lewis, who have made no legal aid claim although, of course, as I have already said, he does not accept that it was an issue even at that stage. I do not accept Mr Ahluwalia's submissions.
12. First, in her affidavit of 26 November 2007, the Claimant's (then) wife said this at paragraph 23:

"My solicitor has advised me to enter a home rights notice as well as placing a restriction on the matrimonial home to prevent the Respondent from selling the home without us first agreeing the division of the matrimonial assets, as I understand that the Respondent has placed the former matrimonial home on the market for sale."

13. That, as it seems to me, indicates that at that stage the Claimant's wife was considering and raising within the matrimonial dispute the division of the matrimonial assets including the matrimonial home and hence why the rights notice was placed on the register.
14. Mr Ahluwalia submitted that this was prior to him being awarded legal aid in June 2008. That is factually undoubtedly correct. But what it does show, as Mr Lawrence submitted on behalf of the Defendant, is the background to the negotiation and advice that was being given to the parties during the period when the legal aid certificate was in effect.
15. Further, there is a letter at page 74 of the bundle from the Claimant's wife's solicitors to the Claimant's previous solicitors in the following terms:

"Please let us know if you're instructed in this matter and if so, please confirm that you will hold the proceeds of sale to our order until the parties can come to an agreement as the division of the proceeds of sale. Please also let us know what the remaining equity in the former matrimonial home is.

We would also be obliged if you would please let us know your client's proposal for financial settlement between the parties. We suggest the parties agree to initially exchange Form Es in an effort to facilitate coming to a settlement."

16. As that letter makes clear, the matrimonial assets, including the matrimonial home, were something that was in the sights of the Claimant's wife and therefore were in issue at that time.
17. Of course, and I accept this, ancillary relief was not formally part of the proceedings that ultimately resulted in the decree absolute and divorce of the Claimant. Nevertheless, it is not necessary that the asset be preserved in the proceedings themselves because, as section 10(7) makes clear, it can be preserved as a result of any compromise or settlement.
18. As has been made clear in, for example, Van Hoorn v Law Society [1984] 3 All ER 136 at page 189 by Balcombe J, the property need not be preserved as a result of proceedings themselves, but may be preserved as a result of a compromise or agreement reached in order to avoid proceedings in relation to them. That, in my judgment, is what happened here. Further, as a result of that compromise, the matrimonial homes notice was eventually removed from the register.
19. Secondly, Mr Ahluwalia submitted that that should be irrelevant as it was he who made the application rather than his solicitors, Fisher Meredith. To the extent it is necessary to identify work done by Fisher Meredith, and for the reasons I will give shortly it is not, it seems to me that that was done, if done by Mr Ahluwalia, as a result of advice given to him during the course of the proceedings, as is made clear by an attendance note dated 23 March 2011 at pages 106 to 107 of the bundle. It is also worth noting that in relation to that document, it also notes that the Claimant was put on notice that there might be a statutory charge that had to be paid. Indeed, the attendance note states that he accepts that there may be a statutory charge to pay.
20. It seems to me, looking at the evidence as a whole, that it was clearly the case that the legal aid agency was entitled to take the view that the Claimant's asset, namely the former matrimonial home, had been preserved as a result of services funded under civil legal aid as a result of the course of the proceedings leading to the Claimant's divorce.
21. It does not matter, in my judgment, if all the work in relation to that was in fact done by Duncan Lewis (his previous solicitors) under the legal aid certificate. It is clear from the decision of the House of Lords in Hanlon v Law Society [1981] AC 124 that the charge applies to the entirety of the costs incurred under the legal aid certificate whether or not those costs are directly attributable to the preservation of the property.
22. That applies here so as to require the charge to be applied even though the only legal aid costs incurred are, at present at least, those by Fisher Meredith. For reasons that no one was able to assist me with, Duncan Lewis have made no claim for their costs.
23. For these reasons, therefore, I am clearly of the view that the Claimant's case is unarguable. The Legal Aid Agency was entitled to take the view lawfully that section 10(7) of the Access to Justice Act 1999 applied to the charge against the Claimant's matrimonial home.
24. That deals with the substance of the application. I will briefly say something in relation to the two matters raised by the Defendant.
25. First, as regards the alternative remedy, Mr Lawrence submitted that the Claimant had an alternative remedy in seeking to have removed from the Land Registry the charge once it was added to the register. That, he submitted, was entirely different from the process which the Claimant had undergone and had disclosed in his renewal notice, namely to challenge the application to register the charge in the first place.
26. Mr Lawrence, however, quite frankly, was not able to identify the statutory scheme that gave the Applicant that avenue of redress. In the absence of that, I see no basis on which I could find that the claimant had an alternative remedy.
27. The second matter relates to delay. The decision challenged is the notification of the charge on 30 January 2013. The proceedings were issued on 4 March 2015. That is over two years later. Clearly, that is, on the face of it, well out of time.
28. The explanation offered by Mr Ahluwalia is that he was actively pursuing his case with the legal aid authority. He had written a number of letters, for example, on 25 January 2014 and 30 June 2014, and, he said, he been in contact with them subsequently up to December 2014 when no replies were received.
29. That, however, in my view, is not an adequate explanation for the delay in not pursuing the claim in time. It is perhaps worth noting importantly a letter before action was in fact issued on 9 April 2013 to which the Defendant responded on 22 August 2013. There is no good reason for delay until March 2015 in bringing these proceedings. For that reason also, permission would be refused.
30. For the reasons I have given, permission is refused.

MR LAWRENCE: Thank you, my Lord. No application for costs is made, my Lord. None was made in the AOS.

THE DEPUTY JUDGE: No order as to costs.

Thank you very much, Mr Ahluwalia.

THE CLAIMANT: Just one question. Can I -- can I actually apply for the interest to be frozen or something on my --

THE DEPUTY JUDGE: Mr Ahluwalia, I have no idea. Mr Lawrence may not know the answer.

MR LAWRENCE: My Lord, I would invite Mr Ahluwalia to write to my client.

THE DEPUTY JUDGE: Yes.

MR LAWRENCE: Thank you.

THE CLAIMANT: Okay.

THE DEPUTY JUDGE: That is the best course. I am afraid I have no idea. Mr Lawrence is only instructed to deal with the case today. He does not generally give advice on behalf of the legal aid authority. Write to them again and see what they say. Thank you very much.

THE CLAIMANT: Thank you.