Legal Services Commission v Henthorn

Claims under regulation 100(8) of the Civil Legal Aid (General) Regulations 1989 accrue when the assisted case concludes, even though the final fee assessment occurs later. The statutory repayment scheme requires a final assessment and costs certificate showing that payments on account exceeded the assessed entitlement, followed by a demand. The costs certificate is ordinarily conclusive, subject to jurisdictional error, procedural error or clear perversity.

Regulation 100(8) provides the exclusive means of recovering overpaid payments on account. Parallel restitutionary claims are unavailable where the statutory scheme supplies a complete code. Exceptionally stale claims may also be defeated by limitation, abuse of process and unfair exercise of public functions.

The Legal Services Commission sought recovery from Aisha Henthorn, a voluntarily disbarred barrister, of alleged overpayments made under the payments-on-account scheme for publicly funded civil legal aid work undertaken between 1987 and 2000.

The claims were brought under regulation 100(8) of the Civil Legal Aid (General) Regulations 1989 and, alternatively, in restitution. Henthorn relied on limitation, laches, procedural defects, lack of proof, abuse of process and unfair exercise of public functions. The central issues were when a regulation 100(8) claim accrued, whether restitution was available alongside the statutory remedy, and whether the claims could fairly be tried.

1. Statutory repayment claims. Regulation 100(8) requires a final detailed assessment or regulation 105 assessment, a finding that payments on account exceed the final costs, and a demand for repayment. The assessment and costs certificate determine the representative's entitlement. The certificate is conclusive unless issued in excess of jurisdiction, affected by procedural error or clearly perverse. A barrister may therefore challenge the absence of a certificate, jurisdictional or procedural error, perversity, or limitation.
2. Accrual and limitation. The payments on account, the final entitlement and any balance due to the fund form part of one accounting exercise. The cause of action accrues when the case concludes, not when the LSC later receives the assessed bill or certificate. This follows Coburn v Colledge, Hillingdon London Borough Council v ARC and LSC v Rasool. All but two claims were therefore statute-barred under section 9 of the Limitation Act 1980. The remaining claims failed on procedural or evidential grounds.
3. Restitution. The Regulations establish an exhaustive code governing payment, assessment, payments on account and repayment. Regulation 100(8) is therefore the exclusive remedy. The pleaded restitutionary claims could not succeed in any event because no sufficient mistake, unjust enrichment or other restitutionary basis was established. Any overpayment had to be recovered through the statutory procedure.
4. Abuse and public law. The extreme delay, loss of records and resulting inability to investigate the claims severely prejudiced Henthorn. The LSC was exercising public functions in administering the legal aid fund. Its unfair and unreasonable pursuit of the stale claims afforded Henthorn additional defences based on abuse of process and public law principles.
5. Disposition. All the LSC's claims failed. Judgment was entered for Henthorn. A pro bono costs order of £41,000 was directed to be paid to the Bar Pro Bono Unit under section 194 of the Legal Services Act 2007.

Not stated in the judgment.