Neighbour dispute — Boundary — Claimant legally aided in damages claim — Award of nominal damages only — Claimant’s costs award overturned — Whether Legal Services Commission entitled to a statutory charge over claimant’s home to recover funding — Claim allowed
The claimant obtained a declaration that an extension erected by his neighbours had encroached on his land along a strip that measured 7in at its widest point. At the trial, it was conceded that the boundary line should be defined as contended for by the claimant, and he was awarded nominal damages of £3,000. However, when his neighbours successfully took the case to the Court of Appeal, his legal costs rose to more than £45,000. The Appeal Court overturned a costs award in his favour.
The defendant notified the claimant that it intended to obtain a charge over his home in order to recover its funding pursuant to section 16(6) of the Legal Aid Act 1988. The claimant applied to the court for a declaration that the defendant was not entitled to a statutory charge, since this would apply only to property that had been recovered or preserved in the proceedings for which legal aid had been given. Although the statutory charge theoretically applied to the strip of land in issue, the evidence was that its value was nil, and that its retention had not added to the value of the claimant’s property.
Held: The claim was allowed.
The commission was not entitled to recover the claimant’s legal aid costs by way of a charge over his property under section 16(6) of the Legal Aid Act 1988. That provision applied only to property that had been “recovered or preserved” in the proceedings in respect of which legal aid had been granted. The property (other than the sliver of land) was never in issue. That sliver of land had no more than a nominal value, and its recovery or preservation in the proceedings had not enhanced the value of the property: Hanlon v Law Society [1981] AC 124 considered.
The term “recovered” in section 16(6) did not extend to property whose beneficial title was not in issue in the proceedings. In the present case, the only relevant issue was the resolution of the boundary dispute. There was no issue concerning the realisation of the claimant’s interest in the property as a whole, and no issue concerning the rights in respect of that interest. Only the rights in respect of the strip of land that had been the subject of the dispute were in issue: Curling v Law Society [1985] 1 WLR 470 and Parkes v Legal Aid Board [1997] 1 WLR 1547 distinguished.
Simon Williams (instructed by William Sturges, of Ealing) appeared for the claimant; Katharine Scott (instructed by the solicitor to the Legal Services Commission) appeared for the defendant.
Eileen O’Grady, barrister
