The House considered the impact of the statutory charge under the 1974 Act in matrimonial proceedings.
Held: The costs in respect of which the statutory charge bit were the costs of the whole divorce proceedings and not just the financial relief aspect. For property to have been ‘recovered or transferred’ for this purpose, its ownership or transfer had to have actually been in issue in the proceedings.
The House gave guidance on the interpretation of Legal Aid Statutes: ‘The subsection, being an adaption for the benefit of the legal aid fund of Victorian legislation enacted for the benefit of solicitors, inevitably presents problems of interpretation. Two fall to be considered in this appeal. The first is to identify the proceedings to which the subsection applies. The second is to determine the meaning of the words ‘recovered or preserved” Lord Simon said: ‘property has been recovered or preserved if it has been in issue in the proceedings – recovered by the claimant if it has been the subject of a successful claim, preserved to the respondent if the claim fails. In either case it is a question of fact, not of theoretical ‘risk.’ In property adjustment proceedings, in my view, it is only property the ownership or transfer of which has been in issue which has been ‘recovered or preserved’ so as to be the subject of a legal aid charge. What has been in issue is to be collected as a matter of fact from pleadings, evidence, judgment and/or order. I can see no reason for extending the words to items of property the ownership or possession of which has never been questioned.’ As to the use of punctuation, Lord Lowry: ‘To ignore punctuation disregards the reality that literate people, such as parliamentary draftsmen, do punctuate what they write.’
Lord Lowry set out the circumstances in which a regulation made under a statutory power was admissible for the purpose of construing the statute under which it was made. Judges may look at the punctuation in order to interpret the meaning of legislation accepted by Parliament.
Lord Scarman said that in most cases a reference to the legal aid certificate would determine the extent of the charge. In two cases where this would not be appropriate – the inclusion in the certificate of proceedings which ought not to have been included such as proceedings for which legal aid was not available and the inclusion in one certificate of two sets of proceedings for which separate certificates should have been issued.
Judges:
Lord Scarman, Lord Simon of Glaisdale, Lord Lowry
Citations:
[1981] AC 124, [1980] 2 WLR 756, [1980] 2 All ER 199
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – Morgan and Others v Legal Aid Board ChD 24-Apr-2000
The Legal Aid Board is entitled to a charge over property which is ‘recovered or preserved’ in proceedings in which the party is legally aided. Nevertheless, the charge could not be applied to property merely because it had been included within . .
Cited – Earl Cadogan, Cadogan Estates Limited v Search Guarantees Plc CA 27-Jul-2004
The tenant of a house had subdivided it and let off the flats. He sought to acquire the freehold.
Held: Where none of the subtenants themselves had qualifying leases, the head tenant could be in sufficient occupation to be able to buy the . .
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – MS (Palestinian Territories) v Secretary of State for The Home Department SC 16-Jun-2010
The claimant faced removal and return to Palestine, but he said that he would not be accepted if returned. He had no ID card, birth certificate or living parents. He appealed against the decision of the IAT and now again from the Court of Appeal . .
Cited – Revenue and Customs v Forde and McHugh Ltd SC 26-Feb-2014
The Court heard a number of appeals concerned with the interpretation of the phrase in section 6(1) of the Social Security Contributions and Benefits Act 1992, ‘[w]here in any tax week earnings are paid to or for the benefit of an earner’ It was . .
Cited – The Mayor’s Office for Policing and Crime v Mitsui Sumitomo Insurance Co (Europe) Ltd and Others SC 20-Apr-2016
The Court considered the quantification of damages to be awarded to a business suffering under riots under the 1886 Act, and in particular whether such recoverable losses included compensation for consequential losses, including loss of profits and . .
Lists of cited by and citing cases may be incomplete.
Legal Aid, Litigation Practice
Updated: 12 May 2022; Ref: scu.183331
