Unrecouped Payments on Account – Law Society Briefing

There has been a longstanding dispute between solicitors, the Law Society and the LSC about recovery of historic payments on account in civil legal aid cases. The LSC have found a number of cases, going back many years, where payments on account were made but, they believe, a final bill never submitted. In recent years they have pursued recovery of these payments. This issue was dealt with in part in the deed of settlement following the Unified Contract JR, but that only provided a partial amnesty and the LSC has continued to pursue other cases.

The view of many practitioners affected by this issue, and of the Law Society, is that much of the responsibility lies with error and delay on the part of the LSC, and since many of these cases are ten and more years old solicitors will no longer have the files or paperwork to be able to respond to demands for repayment to the LSC. This issue came to court earlier this year and the High Court dismissed a claim by the LSC against a retired barrister, Aisha Henthorn.

This week, the Law Society issued a video message from the President and a briefing following on from the Henthorn case. In short, the decision in Henthorn is that the legal aid regulations are a complete scheme and provide the sole mechanism for the LSC to make and recover payments; that the standard six year limitation period applies to recovery of over-payments; and that time runs from the end of the case. The LSC’s claim was therefore time-barred. The LSC has been given permission to appeal the decision and the Law Society have applied to intervene in the Court of Appeal. The Law Society has also made a complaint to the Parliamentary Ombudsman. The Law Society’s view is that pending hearing of the appeal the LSC should not issue proceedings seeking repayment where Henthorn applies, and argues that a similar bar should apply to administrative recovery by off-setting recoupments against current payments. Practitioners affected by this issue should consider the briefing and contact the Law Society.