Ahluwalia, R (on the application of) v Legal Aid Agency

For the purposes of a statutory charge under section 10(7) of the Access to Justice Act 1999, property may be treated as preserved through a compromise or settlement connected with funded proceedings. It need not have been preserved by an order made in the proceedings themselves. Where the statutory conditions are met, the charge may extend to the entirety of the costs incurred under the legal aid certificate, even if particular costs are not directly attributable to preserving the property. Permission for judicial review may also be refused where the challenge is unarguable or was brought after substantial and inadequately explained delay.

This was a renewed application for permission to bring judicial review proceedings. The claimant challenged the Legal Aid Agency’s decision to register, and subsequently not remove, a statutory charge over his former matrimonial home under section 10(7) of the Access to Justice Act 1999. Permission had previously been refused on the papers by John Howell QC, sitting as a Deputy High Court Judge, on 13 May 2015.

The claimant argued that the property had not been recovered or preserved in the matrimonial proceedings and that the relevant work had not been undertaken by the solicitors whose costs were claimed. The defendant contended that the property had been preserved through the matrimonial dispute and its settlement, and also relied on delay and an alleged alternative remedy.

1. Permission refused. The challenge was unarguable on its substance and was also brought substantially out of time.
2. Section 10(7) of the Access to Justice Act 1999 permits a charge where property is recovered or preserved for an individual through services funded under the civil legal aid scheme in proceedings, or in a compromise or settlement of a connected dispute.
3. The property need not be preserved in the proceedings themselves. Applying the principle stated in Van Hoorn v Law Society [1984] 3 All ER 136 at p 189, property may be preserved through a compromise or agreement reached to avoid proceedings concerning it.
4. The evidence showed that the former matrimonial home was in issue in the matrimonial dispute. The wife’s affidavit and correspondence referred to the division of matrimonial assets, including the home, and the matrimonial homes rights notice was later removed as part of the resolution of the dispute. The Legal Aid Agency was therefore entitled to conclude that the home had been preserved through services funded under civil legal aid.
5. It was immaterial that some relevant work may have been undertaken by the claimant personally or by former solicitors. Under Hanlon v Law Society [1981] AC 124, the charge applies to the entirety of the costs incurred under the legal aid certificate, whether or not those costs are directly attributable to preserving the property.
6. No statutory alternative remedy for removing the registered charge was identified. However, the claimant had delayed from the notification of 30 January 2013 until issuing proceedings on 4 March 2015. Correspondence with the Legal Aid Agency did not adequately explain that delay, particularly after the letter before action and response in 2013.

There was no order as to costs.

This was a renewed application for permission following refusal on the papers by John Howell QC, sitting as a Deputy High Court Judge, on 13 May 2015. The renewed application was refused by the Administrative Court.