Legal Services Commission v Henthorn: CA 30 Nov 2011

The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal succeeded. In general, time would run from the earlier date: ‘Save where it is the essence of the arrangement between the parties that a sum is not payable until demanded (e.g. a loan expressly or impliedly repayable on demand), it appears to me that clear words would normally be required before a contract should be held to give a potential or actual creditor complete control over when time starts running against him, as it is such an unlikely arrangement for an actual or potential debtor to have agreed.’, but in this context, ‘time did not begin to run against the Commission in respect of claims falling within regulation 100(8) until the assessment there referred to had taken place.’
Lord Neuberger MR said: ‘A person who wished to obtain legal representation had to be granted a legal aid certificate (‘a certificate’) and, once it was granted, he or she became an ‘assisted person’. An assisted person was, at least in principle, free to choose a solicitor, who was to be subject to the same obligations to the assisted client as would have applied had the instructions been private save for any specific exception provided for by the statutory scheme – see section 32 of the 1988 Act. One way in which the contractual relationship between solicitor and client was altered by the grant of legal aid was under section 9(5) of the 1988 Act, which provided that the assisted person was not required to pay his or her solicitor any charge or fee, save for any contribution provided for in the Regulations. Similarly, under section 31(3), the solicitor was not entitled to take any payment in respect of that representation other than as paid by the Commission or as authorised by the 1988 Act or by the Regulations. . .
The Commission could, and usually did, impose conditions limiting the ambit of the certificate and requiring further approval before any limitation could be amended. Costs incurred by an assisted person’s legal representatives in those cases could only be paid for out of the Legal Aid Fund (‘the fund’) if they had been incurred during the currency of a valid certificate.’


Neuberger MR, Lewison LJJ, Sir Stephen Sedley


[2011] EWCA Civ 1415, [2011] NPC 123, [2012] 1 Costs LR 169, [2012] 2 All ER 439, [2012] 1 WLR 1173




Legal Aid Act 1988, Civil Legal Aid (General) Regulations 1989


England and Wales


CitedBlake v The United Kingdom ECHR 26-Sep-2006
The claimant had been a Russian spy whilst in British Intelligence, escaping from prison and fleeing to Russia in 1966. He now complained that an action by the respondent government to seek to recover royalties from a book had been so extended in . .
Appeal fromLegal Services Commission v Henthorn QBD 4-Feb-2011
The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the . .
CitedCentral Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
CitedSwansea City Council v Glass CA 1992
The defendant had failed himself to repair his property, and the Local Authority carried out the work itself under the 1957 Act. It sought to recover the associated costs from the defendant, but he said that their claim was time barred, being more . .
CitedLegal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
CitedCoburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Lists of cited by and citing cases may be incomplete.

Limitation, Legal Aid

Updated: 27 May 2022; Ref: scu.449043