Law Report: Lords rule that advice can not be claimed for: Regina v Legal Aid Board, Ex parte Bruce - House of Lords (Lord Templeman, Lord Bridge of Harwich, Lord Goff of Chieveley, Lord Jauncey of Tullichettle and Lord Lowry), 2 July 1992

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The cost of advice on matters of law which is furnished by someone who is neither a solicitor nor a barrister cannot be charged to the Legal Aid Board as a disbursement under the Green Form Scheme.

The House of Lords dismissed an appeal by Mrs AP Bruce from the Court of Appeal (the Independent, 12 July 1991) who allowed an appeal by the Legal Aid Board against Mr Justice Hutchison's decision that payments made by the board to reimburse solicitors for the cost of consulting the applicant had been lawful.

The applicant, who was not legally qualified, had been employed by a firm of solicitors as head of their welfare law department and had acquired considerable expertise in welfare law. In 1988 she set up a firm called Analysis to provide specialist welfare benefit advice to solicitors. The fees she charged to solicitors were recovered by them as disbursements under the Green Form Scheme, which was designed to enable a person to obtain advice up to a certain cost limit speedily and without the need for formal assessment of his means or the merits of his claim.

By 1990 Analysis had about 60 solicitors as clients and in about 65 per cent of the cases advised on there had been either an underpayment of welfare benefit or failure to claim benefit where an entitlement existed. But the board ceased to reimburse the solicitors for the costs of consulting Analysis as an allowable disbursement on Green Form claims after being advised that it had no power to do so under the Legal Aid Act 1988.

Stephen Sedley QC and Anthony Bradley (JS Sierzant, Chorley) for the applicant; Duncan Matheson and Lucy Freeman (Collyer Bristow) for the board.

LORD JAUNCEY said the board recognised that Mrs Bruce had provided a valuable service at a reasonable cost to a disadvantaged section of the community and had only stopped paying her fees because of the advice that it had no power to do so.

The statutory provisions governing the scheme were in the 1988 Act, particularly Part III thereof, and in the Legal Advice and Assistance Regulations 1989 (SI 1989 No 340).

'Advice' was defined in section 2(2) as 'oral or written advice on the application of English law to any particular circumstances that have arisen in relation to a person seeking the advice and as to the steps which that person might appropriately take . . .'.

It was clear from section 2(6) that the advice to which the scheme related was given by a solicitor or barrister. Although the advice which Mrs Bruce furnished was undoubtedly 'oral or written advice on the application of English law', it was not necessarily 'advice' for the purposes of section 2(2). It was implicit in section 2 and Part III of the Act that the advice to which the scheme related was 'available to any person' (sections 8(1) and 9(1)), which meant advice given to that person and not simply to his adviser.

Thus if Mrs Bruce's advice was furnished to solicitors, it was advice under neither section 2(2) nor 2(6). If, on the other hand, it was advice to the client and hence within section 2(2), it did not satisfy section 2(6).

If Mrs Bruce's advice was not advice for the purposes of the Act, how could it be paid for under the Act? It was argued that her fees constituted disbursements within section 10(3)(a) and that there was nothing in the Act to prevent a solicitor buying in legal advice from someone else, just as he might obtain a report from a doctor or engineer.

His Lordship rejected that analogy. A doctor's report might contain elements of legal advice, but it was basically a report on matters upon which the solicitor had no theoretical or practical competence to advise. The report enabled the solicitor to give advice on the application of law in the client's circumstances. But Mrs Bruce's reports related entirely to matters on which the solicitor had theoretical, if not practical, competence to advise, namely the application of the law.

The fact that solicitors adopted Mrs Bruce's advice and made it their own, or that by rubber- stamping her advice and passing it on to their client the solicitors might render themselves liable if the advice were negligent, did not make the advice theirs rather than Mrs Bruce's for the purpose of the scheme.

However, even if the advice was that of the solicitor, there remained the question of disbursement. Section 10(3) contemplated that the cost of giving advice should be broken down into two components, namely, (a) disbursements, including counsel's fees, incurred 'in connection with' giving the advice, and (b) charges or fees chargeable by the solicitor 'in respect of' the advice.

The distinction in the wording of the two paragraphs suggested that all the charges for advice given by the solicitor would be included in paragraph (b) and that any disbursements under paragraph (a), apart from counsel's fees, would, so far as they related to advice, relate to that which the solicitor obtained, such as medical reports, and not in respect of the advice which he actually gave.

Thus bought-in legal advice would be neither properly chargeable by the solicitor under paragraph (b) nor a disbursement under paragraph (a).

This construction fitted in with the whole concept of the scheme, namely, that legal advice would only be paid for out of public funds if it was provided by those who were professionally qualified to give it. Since Mrs Bruce was not qualified, the advice she provided could not be paid for under the scheme.