Ebcin v Hassan

A solicitor cannot avoid the statutory restriction on taking payment for publicly funded services merely by transferring money from a client account to an office account. The money may have been taken earlier.

Permission to appeal may be refused where a statutory issue is not determinative and independent findings of negligence and breach of fiduciary duty are not arguably challengeable. Refusal of permission does not endorse the lower court’s unnecessary conclusion on the statutory issue.

The claimant, whose criminal representation was covered by a public funding representation order, paid his solicitor £40,000 for work carried out during the funded period. The County Court found negligence and breach of fiduciary duty, and held that the representation order could not be revoked retrospectively to validate the payment.

The solicitor renewed an application for permission to appeal, challenging the construction of section 22 of the Access to Justice Act 1999, the findings of negligence and fiduciary breach, and the asserted compelling reason arising from the consequences of those findings.

1. Application refused. The Court of Appeal found no arguable basis for disturbing the County Court’s findings of negligence or breach of fiduciary duty. The solicitor had failed to take reasonable care to explain the costs implications and legal-aid position to a vulnerable client. The findings were sufficiently supported and required no further particularisation.
2. The court rejected the submission that money was not “taken” for the purposes of section 22(2) of the Access to Justice Act 1999 until its transfer from the client account to the office account. In the view of Lord Justice Pill, the money was taken at an earlier stage.
3. Lady Justice Smith considered that, had the construction of section 22 been determinative, permission might have been granted because the purported retrospective revocation appeared arguable. The issue was not determinative because the claims also succeeded on negligence and fiduciary duty.
4. The court expressly declined to give its imprimatur to the County Court’s conclusion on retrospective revocation merely by refusing permission. The reservation was not a criticism of the judge, whose reasoning was regarded as cogent and consistent with good professional practice.
5. The statutory issue did not contaminate the findings on the solicitor’s conduct. Whatever the correct interpretation of retrospective revocation, it did not bear on the negligence or fiduciary-duty findings. The applications for permission to appeal were therefore refused.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused on 12 October 2005: [2005] EWCA Civ 1273. The court left the findings of negligence and breach of fiduciary duty undisturbed, while declining to endorse the lower court’s view on retrospective revocation.
• Central London County Court: His Honour Judge Paul Collins made the order under challenge on 17 February 2005.