My question is about the statutory charge / legal aid
Can some one tell me if there is any way I can appeal against the decision by the legal aid commission in connection with them deciding to implement the statutory charge
This is quite a long and somewhat complicated story, but I will try to be as brief possible.
In October 2009 I went to court regarding Matrimonial issues and at that time the judge awarded me 70% of the FMH and a minimum/minimal spousal maintenance order as ex wasn’t working so couldn’t pay any spousal maintenance. EX got the rest of the finances. Ex wanted to buy me out of the FMH but at that time he had been made redundant and was not in a position to do so then. So the house went on the market but there were no buyers ….. (I wasn’t entitled to legal aid at that time so these solicitors / court fee’s etc I paid for privately at a cost to me of between £3000-£4000)…..
Roll forward now to April 2011…. ex gets a well paid job and wouldn’t agree to paying me any maintenance so my ( now new/different ) solicitor and I decide to take him to court to try to get spousal maintenance from him as I was ill and awaiting / having surgery so couldn’t work and I was living off state benefits… while he had a nice lifestyle on his £60k+ salary. This time I am entitled to legal aid and we go to court to apply for maintenance. The FMH was NOT one of the issues why we went to court in 2011. ex was now working and once the ex was in a financial position to buy me out which was during this period he did so…. Hence he now had a WHOPPING big mortgage so little/no disposal income to pay me any maintenance and we decided it would have been a waste of time and money perusing maintenance so withdrew from the court proceedings. Meanwhile the buy out was progressing and in Sept 2011 finalises and I get my 70% share.
Now the legal services commission are saying that because I ‘gained’ financially from going to court that I have to pay the statutory charge and is now asking me to pay nearly £2000 which I haven’t got. The money I got from my share of the FMH all went into buying a small property for myself.
The way I see it is that I have already paid for the financial gain I made when I PAID PRIVATELY FOR MY FEE’S IN 2009… it seems to me that I am being asked to pay twice for the same decision that was made in 2009…legal service commission are saying that because one or two of the letters wrote by my solicitor were in relation to the buy out of the FMH and that they consider that my solicitor helped me and consider that I gained during these court proceeding too.
This seems unfair to me? – and I would like to know if there is any recourse/appeal process I can take as I am unhappy that this decision is decided upon by ‘one caseworkers opinion'' at the legal services commission
Any thoughts/opinions/advice would be greatly appreciated.
As I have said, THE FMH and him buying me out was not an issue going to court, it was just to try and get spousal maintenance which I didn''t get btw....
Does anyone have ''any'' opinions/views on this situation? and is it worth challenging it in any way?
I would not have an issue with paying the statutory charge if I hadn''t already paid once for this privately three years ago...and if going to court this time had anything to do with FMH and it''s division..
Has anyone ever challenged a decision such as this?
You say that you are being asked to pay twice but the Statutory Charge is charged against the fees that your current legal aid solicitor has incurred. You have paid fore work in 2009 and you are being asked to pay for the work that the state has funded to date.
I agree that the link between the work carried out and the realisation of the lump sum is tenuous but even if you did successfully challenge the decision there is a back-up called a ''capital reassessment of means'' which allows the LSC to reassess your means based on any lump sum that you acquire during the currency of the certificate. In your case you obtained a lump sum as a result of Ancillary Relief proceedings. The LSC could and can still demand the money to be paid without delay but as you have used the monies for purchase of a property they have opted to defer the Charge.
It used to be fairly trivial to challenge the Statutory Charge but the rule now appears to be that if you acquire money and/or assets during the course of the certificate, you have to repay your costs. This is no different to a privately paying person who has to pay their costs even if they recover nothing from proceedings - the only difference is that your costs are around a third of the privately paying client''s costs.