| LIMITATION OF ACTION —Legal Aid — Certificate revoked — Recovery by Legal Services Commission of sums paid or payable — Accrual of cause of action — Whether condition precedent that quantum of costs be established — Legal Aid Act 1988 (c 34) — Civil Legal Aid (General) Regulations 1989 (SI 339/1989), regs 83, 84, 86(1)
Legal Services Commission v Rasool [2008] EWCA Civ 154; WLR (D) 75
CA: Ward, Smith and Wilson LJJ: 5 March 2008
For the purposes of limitation and ascertaining the date of accrual of a cause of action permitting the Legal Services Commission to recover costs following revocation of a legal aid certificate, it was not a condition precedent that the quantum of any such costs should first be established before time started to run.
The Court of Appeal so stated when dismissing the appeal of the claimant, the Legal Services Commission, from a decision of Deputy Circuit Judge Taylor, sitting in the Halifax County Court on 21 December 2006, holding that the claimant’s cause of action against the defendant, Mohammed Anwar Rasool, accrued when his legal aid certificate had been revoked, and not at some later date at which the sum actually due had been quantified; and that on the facts the claim was time-barred under s 9 of the Limitation Act 1980. The claimant appealed on the grounds that recovery implied the obtaining of sums owed by way of costs to the assisted person’s solicitor, and the Commission could not claim from the assisted person until it had at least become liable to pay his solicitor, if it had not actually paid him; and thus the assessment or taxation of costs was a vital element, indeed a precondition, of liability, and time accordingly ran from a later date.
WARD LJ said that the purpose of the Legal Aid Act 1988 was to enable those who could not afford to pay for advice, assistance or representation on account of a lack of means none the less to enjoy the services of a solicitor and counsel without cost to themselves, on the basis that the Commission would pay the solicitor’s costs and disbursements once duly assessed or taxed. If, however, the legal aid certificate were revoked the assisted person was deemed never to have been an assisted person in relation to those proceedings; but the Commission was not released from its duty to indemnify the solicitor. Concentrating on the Civil Legal Aid (General) Regulations 1989 as they were when the certificate was issued in 1993, the retainer was determined (reg 83 of the 1989 Regulations) and reg 84 next required that the costs of the proceedings “shall” be submitted for taxation or assessment; and per reg 84(b) the “fund shall remain liable for the payment of any costs so taxed or assessed”. Reg 86 conferred the right to recover such costs from the formerly assisted person, providing that “the [Commission] shall have the right to recover” from the formerly assisted person “the costs paid or payable under reg 84(b)” less the amount of any contribution already made. In looking to limitation of such a cause of action, the question arose whether the need to ascertain the precise sum which was payable was a condition precedent to recovery by the Commission. The answer, having regard, inter alia, to Coburn v Colledge [1897] 1 QB 702, was in the negative both for sums “paid” and “payable”. Taxation should not be the crystallising event; and the only facts required to establish a cause of action under reg 86(1) were that the work had been done under a certificate but that the certificate had been revoked. The 1988 Act’s purpose of preventing delay would be frustrated if the claimant’s submissions were correct.
SMITH and WILSON LJJ agreed.
|
