LEGAL ADVICE NEEDED. mum divorced 2 years ago. legal aid says she owes them money.

thinkginge

Hiya

looking for advice for my mum really, dont know if this is the right place to put this or not

Basically, my mum and dad went through an extremely messy divorce which dragged on for four years and ended 2 years ago in 2006.

This was due to my dad not complying with everything and lots of other things.
my mum recieved legal aid during this whole time. the case had to go to court and my mum had to pay all the court fees at the time totaling about £2k.

to get the divorce done, my mum had to cash in insurance policys, and remortgage to basically buy my dad out. this totaled about £20k i believe.

end of matter. or so we thought.

today my mum recieved a letter from legal aid saying she has to pay them back all of the legal aid she recieved. they have said they have been trying to contact my mums lawyer for months, who has it seems ignored them. the lawyer really isn't good as my mum found out nearing the end of her divorce.

the lawyer never told my mum that when the divorce ended she would have to pay back the legal aid. the sum of such a lengthy divorce seems unclear at present. as my mum was distraught on the phone, legal aid said they would talk about it at another time.

now they want valuation house documents etc, which my mum now cant find as it was 2 years ago.

i have no idea this was the case. they have said anyone who has capital must pay them back. my mums house is now mortgaged to the hilt, from having to pay my dad and is strapped for cash as it is. where do we stand exactly? can they do this ? please help anybody?

Nicki

My understanding was that legal aid does have to be repaid if assets are transferred in matrimonial proceedings, and this should be explained to clients at the outset. What does your mum's lawyer say about this?

thinkginge

the lawyer never told my mum any of this as the begining or end of the divorce. ive just did some research and "clawback" would apply to any case like my mums from the outset. but the lawyer explained nothing of this explained anything about legal aid at all to my mum. just got off the fone to my mum and shes hysterical again.

lawyer is unreachable. my mum doesn't want to even see her anyway.

Nicki

thinkginge wrote: »

the lawyer never told my mum any of this as the begining or end of the divorce. .

Are you sure? The lawyer would have had to write to your mum at the beginning of their relationship explaining about their fees and how legal aid works. This is a professional requirement and most solicitors just have a standard letter about it they send to everyone, or some standard paras to go in the first letter. Even a rubbish solicitor would find it hard to get this wrong!

On the other hand an upset client whose marriage is falling apart might conceivably not read all the letter closely especially if they looked like standard bumf, and if the solicitor hadn't explained verbally the situation then it could slip by.

You won't get anywhere with the LAB over this, I dont think, but you may get somewhere with a complaint against the solicitor if your mum is positive they didn't write to her about this, but the solicitor will have kept a copy of all correspondence on your mum's file so she will need to be 100% positive they never wrote to her to get anywhere.

Gillianh2

Perhaps you could take your Mum along to the local CAB office and get them to speak to LAB on your behalf. They will also be able to guide you in the right direction to getting advice on your Mums solicitor.

MXW

When I went through my divorce I wasn't working so was entitled to legal aid, I was told from the very beginning that legal aid is NOT free (unless you are on certain benefits), my divorce also dragged on and in the meantime I went back to work, the legal services commission took details of my earnings and I had to pay them £70 per month whilst the divorce was going on. As the house was mine prior to my now ex putting his name of the mortgage, the judge awarded the house to me. When the divorce was finalised I either had to pay what I owed (which I didn't have) or a charge be set against my property, which basically meant that at such time that I sold the house, I would then have to cough up. The only problem with that is they charge you interest on the amount you owe. In the end I cashed in an endowment policy and paid what I owed and then the charge was removed from my property. I hope this helps.

thinkginge

my mum was told by lawyer she was a candidate for legal aid, the lawyer then put in application. my mum then recieved letter saying, yes, you can get civil legal aid, you need to pay us a one off payment of £65. which she did. she then 2 years into divorce, soliciter says must go to court, you will have to pay the court fees, so my mum did so monthly to the tune of 2k.

my mums divorce was stressful, but as shes only 39, shes not dottery and no way would she forget or not read something the lawyer said or had sent to her. she had binders full of documents at the time. i really believe the lawyer didn't tell her the ramifications of legal aid. thats why my mums devestated, she believed that her divorce was behind her and was looking forward again.

from reading everything on legal aids own website, i believe she will have to pay and should have been told this from the start, BUT WASNT. thats whats bothering us most. feel pretty let down by the lawyer, but my mum was let down by her in the divorce proceeding so cant say its a shock that the lawyer has ommitted something.

thinkginge

MXW wrote: »

When I went through my divorce I wasn't working so was entitled to legal aid, I was told from the very beginning that legal aid is NOT free (unless you are on certain benefits), my divorce also dragged on and in the meantime I went back to work, the legal services commission took details of my earnings and I had to pay them £70 per month whilst the divorce was going on. As the house was mine prior to my now ex putting his name of the mortgage, the judge awarded the house to me. When the divorce was finalised I either had to pay what I owed (which I didn't have) or a charge be set against my property, which basically meant that at such time that I sold the house, I would then have to cough up. The only problem with that is they charge you interest on the amount you owe. In the end I cashed in an endowment policy and paid what I owed and then the charge was removed from my property. I hope this helps.

the problem is my mum, in essence cashed in all policys to buy my dads share of the house back

Bossyboots

The rules on repaying legal aid are clear and not open to discussion with the Legal Services Commission who now administer the fund. They simply do not have authority to waiver from the rules that have been set down.

The first rule is fairly straightforward. It is "if you recover or preserve assets or property during the course of a case for which you are granted legal aid, you will be liable to repay to the legal aid fund the costs of your public funding". MXW is right, that it is usually explained in the terms that legal aid is not free, it is a loan. In actual fact, it is not even free if you are on benefits. For example, if you are a wife living in the matrimonial home and in the divorce proceedings this is transferred into your sole name without payment to your spouse, then you have technically received the sum of any equity in the property. The statutory charge then comes into play and the costs will be repayable. The advantage of having legal aid in this situation is that the costs will be considerably lower than if you had not had legal aid and been paying privately. That is a very loose example, as obviously cases are not usually that clear cut but I would be here all night if I set out all the different examples.

MXW has set out extremely well the situation in respect of "deferring" the charge. The interest rate payable has now been deliberately set as higher than many high street loans in a bid to encourage people to finance the charge elsewhere and thus return much needed money to the legal aid fund.

Nicki is correct too. I tend to agree that it is possible that the OP's mum didn't read the client care letter properly but am more than willing to concede that despite the strict rules brought in about informing clients (prior to the time frame the OP has mentioned) of the statutory charge, there may still be firms not doing this properly. This would be a audit failure and risk their licence to undertake publicly funded work.

To practical matters now though. It seems at first reading, that mum is the victim of failures on the part of the solicitors. They have a duty to preserve the fund and had forms they would have needed to fill in to do so. I am surmising that these have not been done. The result of this for the firm would be non-payment or recoupment of their fees by the LSC. The fact that they are not answering the LSC means something is not right somewhere but that would be for the LSC to sort out. However, if the firm are not paid any legal costs then there should be nothing to recover under the statutory charge.

What should have happened was that the charge was set against the house as described by MXW. However, if there is not enough equity to cover this, they would have run into difficulties as a charge against the house would be worthless in real terms.

The rule on capital is that any capital recovered or preserved has to be sent to the LSC by the solicitors and held until the final costs are sorted out or the solicitors agree to limit their costs to whatever amount and they can then release the balance. I am therefore a bit unsure about what capital they are seeking to enforce the charge against. Perhaps the OP could explain a bit more. This could simply be the LSC not knowing what the financial awards were, not getting any response from the solicitors so trying to stir the assisted party into getting things moving. Technically she has preserved her share of the property, so I suspect that is what they are seeking to enforce against.

I also do not understand why mum paid the court fees as these should have been paid from the LSC as the case went on, not the assisted party.

I feel that the OP has posted in a hurry and things are a little garbled which I can totally understand. It would help however if things could be explained a little more clearly, particularly the issue of court fees. I am also thinking like Nicki, that there might be a cause of action against the solicitors.

I have answered this quickly as I am short of time right at the moment, but I was so worried by the OP's post that I wanted to try to get something down. I notice that the OP is in Scotland and things may work a little differently from England but I will try to research this if I can find anything. If anything is unclear or I have garbled myself, I will try to explain further.

Bossyboots

I see you have posted while I did thinkginge.

I am very concerned about her being asked to pay the court fees. Although she had to pay a lot to buy your dad out, she "preserved" her share of the property which he could have made a claim for. This is where the statutory charge comes into play.

I think it would be a good idea for your mum to make concerted efforts to find her paperwork and get it in order. If she wasn't told about the statutory charge and there have been irregularities, then this needs investigating. She needs to cooperate with the Scottish LSC but also she needs to tell them of what appear to be the errors. While they have to apply the charge if it is payable, they should investigate any irregularities. I can understand how distressing this is, but a methodical approach is the best and the LSC need to know the whole picture so they can take any steps they are able to ensure your mum does not end up in financial difficulties.

What has also just occurred to me, is that you mum should have been sent a copy of the solicitors' proposed bill and given an opportunity to comment on it. Was this done? I suspect not. This is another issue the LSC need to know. The first step I would suggest is that, assuming they have paid the solicitors, they forward your mum a copy of the bill and she should inform them that she was never sent a copy to comment on.

thinkginge

thanks bossyboots, your post have really helped.

i understand completely that my mum has to pay legal aid. from reading on the scottish legal aid website, there is no room for any negotiation on this and my mum fully understands this as i have just explained the whole clawback system to her as best i could.

my mum just told me that on the 2nd or 3rd meeting with the solicitor, the issue of payment of legal fees came up and my mum was asked to sign a document that, i take to be the application for legal aid. nothing was explained etc. just literally sign this in order to get legal aid to cover our fees.

there seems something is very wrong in the fact the lawyer is avoiding the legal aids calls. it seems to me what has happened is that the lawyer has estimated the costing of the divorce wrongly to legal aid firstly, so that when the lawyer has then handed them the bill with the correct fees for the case, the figures haven't added up. i can only submise that the lawyer has handed legal aid there bill recently, even though the case finished 2 years ago, as legal aid has told my mum they have tried for months to contact her solicitor to no avail.

my mum is happy to help legal aid and is taking their calls etc to get this sorted out. as no one wants a massive debt hanging over their heads.

i dont understand, from what your saying, why my mum had to pay court fees. all i know is she did, monthly for quite some time, i will have to find out if she paid this to the lawyer directly( which i suspect) or directly to the court.

in my vague memory from the time was that she had to pay in order for it to go to court, that legal aid wouldn't cover this. im positive this is what the lawyer said.

in regards to what she paid my dad. the house at the time was valued at £80k with a £34 k mortgage, so my dads share was £23, just foned my mum and she said she had to pay him £14k to buy him out. so that i take it leaves an £9k capital gain, minus the £5009 waver, so her capital would work out at £4k. is that right?

the lawyer made some big muck ups through out the divorce and led my mum down the garden path in regards to what she was going to get in the divorce. it was adultery on my dads part, so it stung like hell my mum having to pay him anything. but all thats in the past. all im concerned with at the moment is what my mums going to pay and how shes going to pay it.

really appreciate all your help guys x