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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jan & Anor v Torrance  EWCA Civ 1974 (19 November 2001)
Cite as:  EWCA Civ 1974
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Wakefield)
Monday 19th November, 2001
B e f o r e :
|(1) SAWAR JAN|
|(2) ABID HUSSAIN|
|- v -|
|JOHN ANTHONY TORRANCE|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
THE RESPONDENTS did not appear and were not represented
Crown Copyright ©
"2. That the Defendant may expend reasonable sums in employing a surveyor and workmen to carry out the works listed as outstanding in the schedule to the report of Patrick Reddin dated 14th September 2000 and in the Schedule to the report of Stephen Coultas dated 28th September 2000.
3. That the Defendant's workmen and surveyor may enter the parts of the premises known as 55 Lavington Road, Ealing, adjoining the Defendant's first floor flat, upon reasonable notice, for the purpose of inspection and execution of the said works; and
4. That the sums so expended by the Defendant may (when expended) be further set off against the outstanding rent owing to the Claimants and any future rent owing to the Claimants in respect of the defendant's flat."
"I confirm the Legal Services Commission's statutory charge arises in this matter.
Mr Torrance has recovered £8,700 in general damages by way of set off and will further recover sums from accumulated rent to offset repair costs.
I note your comments in respect of the works required and the disrepair. The charge on the general damages of £8,700 arises immediately and is clear. The charge on any sums expended upon works, by reason of the wording of the order arises immediately that they have been expended, although the actual monies may then be available having been expended, your client then attracts an immediate liability for an equal sum (up to the level of your costs claim less exemptions). There is no power to postpone enforcement of the statutory charge in this matter. The charge arises immediately and whilst I note costs have been awarded and may be enforceable, you would need to seek certificate amendment to pursue enforcement proceedings. The Legal Services Commission does not undertake enforcement in these circumstances.
Whilst I am sure it is inadvertent, the effect of the order seem to attempt to circumvent the fact the Legal Services Commission's statutory charge is a first charge under Section 16(6) of The Legal Aid Act 1988 thereby putting us at risk as to costs recovery, which is not acceptable.
This may not be an issue if your costs will be less than £8,700 (inc disbursements, VAT & counsel)."