Marstons. Capital Contribution Order

[Manxman in exile]

But his wife is unaware of all this and the OP does not want to tell her... yet.

[Manxman in exile]

I know nothing about capital contributions in respect of legal aid, but I'm confused and I suspect HOWLER might be as well:

 

(1)  In his OP, HOWLER says he's been told he owes an amount "to the tune of £100,000", but that's not what the email extract above says - it says £106 only.  What is the amount?  HOWLER redacted from the first document he posted all the figures relating to the calculation.  I also note that the above states a disposable capital figure of both £123 and £123.000 - is this a typo and the second figure is meant to be £123.00 rather than £123.000 or is it meant to be £123,000 which is what the calculation suggests?

 

(2)  What does "I can confirm that we have paid total FDCs of £112,. You have paid an income contribution of £5.6k leaving an outstanding balance of £106" even mean?   Is this what the email actually said or is it a typo by HOWLER in transcribing the email?  (Sorry HOWLER - I'm not having a go at you, I'm sure you're not used to doing all this).

 

(3) HOWLER was advised earlier to ignore this demand because his wife's property couldn't be taken into account in calculating the capital contribution.  Is the view now that this advice was mistaken and her property can be taken into account?  If HOWLER is confused by this whole thing  (and he says he is) it might be useful to spell out for him exactly what the position is regarding this point.  (It looks to me as if it can be taken into account).

 

I'm not particularly concerned about whether the demand can be enforced, whether any charge put on the property will have any teeth to it, or whether HOWLER needs to plead his wife's disability.  All that seems irrelevant to me until the actual amount "owed" is bottomed out, and I can't tell three pages in what that amount is.  Apologies if I'm being stupid and the amount is obvious, but I can't see it and so far as I can tell nobody else has pointed out the discrepancy between £100,000 and £106.

 

OK - presumably the balance owed is a typo by HOWLER.

 

Total legal aid paid out = £112,000 less initial contribution of £5,600* leaves outstanding balance of £106,000 - sort of.  Is it normal practice for the Legal Aid people to be so slapdash and careless in their calculations?  £112k less £5.6k* does not equal £106k.  If they are trying to back up some sort of charge/demand I'd expect to see calculations to at least the nearest pound - and I'd prefer it to be to the exact penny.  Absolutely hopeless!

 

* I understood HOWLER also to be advised to claim back the money he'd already paid - £7,000 according to him, but only £5,600 according to the email.  Does this still stand if his wife's assets can be taken into account?

 

EDIT:  I don't know they paid out £112,000 - HOWLER's email just says £112, but it's the only way the figures make any sense - well even then they don't make sense.  Pity the original calculation figures were redacted.  (Sorry HOWLER - not having a go at you.  I made a living out of understanding numbers - you probably didn't).

 

HOWLER - sorry, but did you actually cut and paste that email from Legal Aid, or did you simply try to copy it word for word?  If it is a cut and paste the author of the original email ought to be shot...

[Manxman in exile]

Well, I'm speechless and I don't know whether to laugh or to cry.  I graduated with a law degree (the first of two) in 1979, and if anybody had told me that 40 years later an unsuccessful legally aided defendant could end up with a legal bill of over £100k, I'd have called them a barefaced f'ing liar.

 

So Howler has £112k of legal aid spent on his defence, and ends up liable for all of it, simply because his disabled and cancer surviving wife (not him) owns the flat they live in.  And the value of that flat is only £150k!  Well, well.  How times change.  I was aware legal aid had been cut back drastically, but I didn't realise it was like this.

 

I don't know what you can do other than write as suggested by London1971.  If you don't tell your wife now, I'd suggest you need to start preparing to do so, because you are likely to be asked to demonstrate how unwell she is.  I can fully understand you don't want to burden her with this, but it might be better if she knew sooner rather than later.  When (or if) you do tell her, she may be really annoyed you hadn't told her earlier.  Only you can judge that.

 

I think Andyorch may be suggesting challenging the £112k figure as to how it's made up.  Might be worth a try, although I think you suggested it may have been connected with money laundering charges, so the costs may have been particularly high.

 

Just one thing.  You say the flat is only in your wife's name, and she owns it outright.  Are you absolutely sure there's no mortgage or any other monies outstanding on it?  Or any other legal liabilities you or she have that could reduce your disposable capital?  I'm just thinking aloud as I don't understand how this works.

 

EDIT:  The amount of money they are demanding is so large that it's ridiculous they are even wasting time and money trying to recover it from you.  Anybody sensible looking at your "real" disposable capital (how could you dispose of the flat?) would see immediately that it was unrealistic!  Bonkers...

Edited June 17, 2020 by Manxman in exile

[Manxman in exile]

OK.  I think your best bet is to do something along the lines of the letter suggested by London1971.  As he says, do everything by proper mail first class and not email, and ask them to acknowledge that they've received it.  If you can't do recorded at least post it at a post office where you can (or you could) ask for a free certificate showing you posted it.  Keep the certificate and a copy of the letter in a safe place. 

 

Hope for you and your wife that things turn out for the best.  Good luck...

 

 

[Manxman in exile]

Just for Howler's benefit (and mine to be honest - I know nothing about this subject area and I'm a bit confused) can we clarify what has been said in the previous two posts?

 

Is it absolutely clear that a charge can't be put on the property owned by Howler and his partner/wife?  Because I suspect (although I may be wrong) that it is that point that Howler wants reassurance on.  I know the reply from the LAA says Marstons might apply to put a charge on the property - and that that is technically wrong - but that doesn't mean the LAA can't apply for a charge and get one, does it, because the LAA does own the debt?  If I were Howler it would be of no comfort to me whatsoever to know that Marstons can't put a charge on the property if the LAA can.

 

(I'm asking for clarification because Howler was originally advised that his wife's property couldn't be used in the calculation, but it appears that that was mistaken - and then there was other confusion over what type of charge could be put on the property - see posts #69(3) to #76.  I didn't follow that discussion about the type of charge, and I'm a bit concerned that if I'm not following it neither will Howler be.)

 

Also - and this might render my above points redundant - I've just read the leaflet linked to by Andyorch here:

 

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/860909/Client_Legal_Aid_Leaflet.pdf

 

That leaflet does say that the LAA can put a charge on your property, but, unless I'm misreading it (and I might be!) it only seems to mention it in the circumstances where the legally aided person keeps or gains property.  Well Howler hasn't kept or gained property, has he?  On the contrary, he was convicted.  So can even the LAA apply for a charge if property was not kept or gained, or am I reading it completely wrongly?  I appreciate it is only a leaflet and not the actual statute/regulation, but that's what it appears to say to me.  (NB - I don't know if the flat was ever in jeopardy in Howler's criminal trial, but he didn't "keep" it afterwards 'cos he never owned it!).

 

As I say - I'm not querying the advice given to Howler, I'm just saying it's not clear to me so may not be clear to him either.

 

Apart from all that I agree with London1971.  Howler should write to LAA CEO and their MP and persevere with "my wife's disability/hardship" line of attack.  It's a ridiculous situation and a waste of money trying to recover it.

 

Good luck HOWLER.

 

 

[Manxman in exile]

I've just re-read that Legal Aid leaflet again and to me it only mentions putting a charge on your property if you've gained or kept money or property.  And the only example given is from a divorce case where ownership of property is disputed.  Now it might be that it also applies to criminal proceedings where there may be the possibility of confiscating property which is the proceeds of crime (I simply don't know) but is it also saying that if you are charged with any criminal offence and you own any property (that you keep*) you have to repay your legal aid?  That might be true of course, but it seems incredibly draconian to me.

 

I also note that leaflet says the OP should have (and is entitled to ask for) a breakdown of legal fees from the solicitor(s) and/or barrister(s).

 

*As I said earlier, the OP didn't technically keep property anyway 'cos it was owned by his wife.  Whether that is a valid argument or not I don't know.

 

(Sorry - don't want to derail the direction of this thread but If I were Howler these are questions I'd want answers to).

Edited June 25, 2020 by Manxman in exile

[Manxman in exile]

I don't want to bang on pointlessly about this and if anyone thinks I'm misleading HOWLER, please, please tell me.

 

1.  I agree with what London1971 suggests HOWLER should do, but...

 

2.  Everything I've read suggests that a charge cannot be put on the property anyway.  So why not just point that simple fact out to the LAA?  (And tell them to **** off).

 

This is from one solicitors' website: 

 

"Following this change in the legislation, Legal Aid is now to be considered as a loan and not a gift. If as a result of receiving legal aid assistance you gain property that you did not own previously, you will have ‘won’ or ‘recovered’ it. If you keep some property that someone had attempted to take from you, you will have ‘kept’ or ‘reserved’ it. Some examples include a house, shares, life policies or payment of compensation.

If the result of your case is that you recovered or preserved property or a sum of money, and some or all of your legal costs are not met by your opponent, you may be required to pay back some or all of the costs of your case. This is called the ‘Statutory Charge.’ This Statutory Charge is likely to apply in cases involving money or property such as divorce and ancillary relief or personal injury cases."  [My bold].

 

https://www.worthingtonslaw.co.uk/legal-aid-the-statutory-charge-explained/

 

 

Now it doesn't say so explicitly but that implies to me that a charge can be applied if the legally aided person "wins" and they either recover or gain property that was in some way subject to the proceedings.  But that doesn't apply in HOWLER's situation, does it?

 

I don't know if my interpretation of this is correct or whether it only applies to civil rather than criminal cases (the legal aid part of the .gov.uk website appears to be useless) but it does appear to be in agreement with the legal aid guidance linked to previously.

 

Everything else I've read tends to suggest that the aided person must have kept, gained, won or recovered property or money in some way as a result of the proceedings before a charge can be applied.  Is that HOWLER's position?

 

As I said, if I've got this wrong or I'm misleading HOWLER or I'm giving him false hope, please somebody tell me (and him).

 

Otherwise go with a letter as suggested by London1971.

 

 

 

Edited June 26, 2020 by Manxman in exile

[Manxman in exile]

4 hours ago, London1971 said:

 

 

Still, I say howler needs to go for the neck, make a huge complaint to the Chief and demand his hard earned cash back.
 

 

 

Can't argue with that.  Nothing to lose.

[Manxman in exile]

Do as suggested by London1971 and write that letter.

 

I think the view here is that if the Legal Aid Agency was able to put a charge on your property then they would already have done so and not involved Marstons.  Check back a page or so and I think the advice was not to worry too much about it unless they (or the Land Registry) write to say they are actually going to do it.  (Of course, if they do do it, there's not much you can do about it anyway as I don't suppose you've got £106k spare).

 

If you actually want to do something other than wait and see what happens, write as London1971 says.

 

If it makes you feel any better, I ought to be able to find this stuff out and understand it, but it's too complicated for me.  That's why I've asked if they can put a charge on in your circumstances because I read it that they can't - but I'm as confused as you and don't fully understand it.

 

PS - I am pretty certain that selling or transferring the flat to your kids won't be a solution!

 

(And as London1971 says, perhaps you ought to try to recover what you've already paid?)

[Manxman in exile]

Yeah.  Good luck HOWLER

[Manxman in exile]

Well done Howler!  Reading between the lines of her response and the number of times she apologises for causing any distress etc, you must have sent a really good letter!

[Manxman in exile]

I don't always agree with London1971 but having re-read Jane Harbottle's letter from back in July I'd agree you should write a letter of complaint directly to her.  She aplogised so many times and so profusely in that letter about the clumsy threat to put a charge on your wife's property that I'd go direct to her on the off-chance that they've screwed up again somewhere in this process.

 

I assume that after you received the letter from her you submitted some sort of hardship appeal against the capital contribution order together with a statement of income and outgoings?  (That's what her letter appeared to be suggesting you do).

 

I'd be asking them how they have come to the conclusion that some of your expenditure is "not a priority" without giving you any fair opportunity to justify it, and how on earth they can consider a proposed payment plan of £250 per month from an income of £1150 (over 20%) to be reasonable?

 

Plus the other stuff from London1971:  "Tell them to stop bullying vulnerable pensioners, and taking away their food money in the middle of the worst public health and financial crisis in living memory".   Plus your in a vulnerable group from Covid blah blah...

[Manxman in exile]

Howler - don't get pissed off.  Look at it as a game.

 

If I remember correctly they threatened you with having a charge put on your wife's property - which you and your wife successfully got them to back down on and you got a written apology from the chief officer(?) of the Legal Aid service.

 

Now they've assessed your income and outgoings and have passed it onto debt collectors without any reference back to you and without giving you an opportunity to challenge their findings.  I'd be complaining to the Legal Aid service again that that is unfair and wrong.

 

I know you've recently had bad news in that you've been diagnosed with some sort of brain problem (sorry - don't know how else to put it) and your wife is not well, so all this is the last thing you want, but in the overall scheme of things, it is only money.

 

They say you owe them, what, about £106k?  Can you afford to pay it - NO!  What can they do about it?  Sue you - so what...  nobody dies from being sued.  Get on with your lives and you and your wife enjoy yourselves.

 

And remember, London1971 and dx100uk reckon you should be claiming back the money you've already paid them

 

Just don't get depressed or down about it.  It's simply not worth it.  Even if you lose it isn't worth worrying about and making your self (and your wife) more ill.

 

When (or rather IF) you get an actual court claim - come back.

 

(It's a bit like that old saying.  You owe the Legal Aid service £1000 - that's your problem.  You owe them £100k and can't pay it - that's their problem!)

[Manxman in exile]

Well done HOWLER - congratulations to you and your wife for persevering!

 

I've no idea about recovering what you've already paid - but I'm sure dx100uk and London1971 can advise.

 

Again, well done

[Manxman in exile]

Sounds good to me - make the most of it

 

HOWLER - make sure you keep a copy of that email from LAA writing off the £106K!!!