The Law Society has been given permission to intervene in the Legal Services Commission’s appeal against a ruling that the LSC’s action to recover payments on account was an abuse of process due to the delay in bringing the claims.
In March the Gazette reported that the High Court had dismissed an attempt by the LSC to recoup £109,064 that it said had been overpaid to barrister Aisha Henthorn in relation to cases between 1987 and 2000.
The High Court ruled that the LSC’s claims were subject to the Limitation Act and should have been made within six years of the date each case concluded, which is when the cause of action arose in each instance.
Criticising the ‘culture of delay’ that had developed at the LSC, the court ruled that the LSC’s action to recover the alleged overpayments, some of which related to work done over 20 years ago, amounted to an abuse of process.
The LSC appealed the decision to the Court of Appeal, which has approved the Law Society’s intervention in the appeal.
The case arose as the LSC has been undertaking a recoupment exercise relating to historic payments made to solicitors and barristers under old legal aid certificates.
Some firms faced with such claims have been unable to provide paperwork to evidence the work they did, due to the length of time that has passed.
Law Society president Linda Lee said the aim of the Society’s intervention will be to assist the Court of Appeal with evidence of solicitors’ experience of unrecouped payments on account claims and evidence relating to abuse of process.
She said: ‘Our members have reported that, in many cases where they formally notified the LSC that the case is concluded, the LSC had not responded as it should by discharging the certificate and claiming any recoupment due.’
Lee said firms have also reported that, even after formal notification to the LSC, they received computerised statements from the commission containing inaccurate information about the status of cases and payments.
‘Law firms are businesses like any other and cannot operate in a system where there is so much uncertainty and lack of clarity over recoupment of payments,’ said Lee.