Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency)

The statutory charge depends on the proceedings or dispute in connection with which legally aided services were provided. Where Human Rights Act damages are recovered within care proceedings, the legally aided costs of those proceedings may form a charge on the damages. Where the human rights claim is pursued separately, and its costs are kept separate from the care proceedings, the charge is limited to legally aided expenditure connected with the human rights claim. Practitioners should issue separate proceedings, obtain appropriate legal aid authority, and ensure that the human rights claim is not conflated with the care proceedings.

Following care proceedings, the court found that Northamptonshire County Council had breached the Convention rights of the child and both parents. The parents’ Human Rights Act claims were subsequently compromised. A dispute arose as to whether the Legal Aid Agency’s statutory charge for the costs of the care proceedings would attach to damages recovered under those claims.

The local authority and the father sought declaratory relief concerning section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Legal Aid Agency revised its position, confirmed that care costs would not form part of the charge where the human rights claim was pursued separately and the relevant undertakings were given, and issued guidance for future cases.

1. Disposition. The application for declaratory relief was withdrawn, with no order as to costs.
2. Section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 creates a first charge on property or money recovered in proceedings or a dispute in connection with which legally aided services were provided. The relevant question is therefore the connection between the recovered damages and the proceedings for which the legal aid expenditure was incurred.
3. Where Human Rights Act damages are awarded within care or other family proceedings, the full legally aided costs of those proceedings will generally form the statutory charge, subject to any recovery of costs from another party.
4. Where the human rights claim is pursued outside the care proceedings, including through separate civil proceedings or an external settlement, only legal aid expenditure incurred in pursuing the human rights claim is treated as connected with that claim. Care costs do not form part of the charge where the care proceedings and human rights work are kept separate and the required undertakings are provided.
5. The court underlined the importance of keeping the human rights claim and the care proceedings entirely separate. The appended Legal Aid Agency position statement, together with the guidance referred to in it, was intended to guide future cases. The application was therefore no longer necessary.

First-instance proceedings in the High Court (Family Division). The judgment records that the application for declaratory relief was withdrawn following the Legal Aid Agency’s revised position and publication of guidance.