Cassidy v Stephensons & Legal Services Commission
23 June 2009
This case concerned the application of the statutory charge under s. 10(7) Access to Justice Act 1999 where a publicly funded clinical negligence claim failed as a result of solicitors' negligence and a claim against the solicitors was subsequently settled.
The Legal Services Commission asserted that, in those circumstances, the statutory charge in respect of its outlay on the original claim attached to the recovery from the negligent solicitors, because funded services were provided "in connection with" the professional negligence dispute. The effect of that argument would have been to make the claimant liable to repay those costs, which the claimant would have sought in turn to pass on to the solicitors.
HHJ Holman, sitting as a High Court Judge, rejected that argument, agreeing with the solicitors that the statutory charge would only apply where recovery was made in the original funded proceedings and did not extend to recovery in other proceedings, even if those proceedings were related to the funded proceedings. Thus, the regime under the Access to Justice Act 1999 preserved the position which had been the case under the previous legal aid regime and indeed all previous enactments of the legal aid scheme since 1949. The Judge also rejected an alternative argument that the recovery from the negligent solicitors was subject to a constructive trust in favour of the LSC.
The effect of the decision is that those settling professional negligence claims arising out of failed publicly funded litigation do not need to make provision in the settlement for any outlay by the LSC in funding the original claim.
The Judge granted the LSC permission to appeal. It remains to be seen whether it will be taken up.
Please click here for the full judgment.
Jamie Carpenter acted for the solicitors, instructed by Barlow Lyde & Gilbert
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