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19 JUL 2007

LEGAL AID/NEGLIGENCE: Truex v Kitchin [2007] EWCA Civ 618

(Court of Appeal; Waller and Lawrence Collins LJJ; 4 July 2007)

The respondent had instructed the appellant solicitors in divorce proceedings and a leave to remove application. The matter proceeded with the respondent paying the solicitors on a private basis. A payment on account of £9,000 was made. Between 18 February 2003 and 7 April 2003 £21,000 worth of work was carried out. On or about 7 April 2003 the respondent transferred to another firm of solicitors and was granted public funding. The balance of £12,000 remained outstanding.

The question was whether the appellant firm of solicitors should have advised the respondent that she might be eligible for legal aid earlier than they did. In the original hearing of the claim by the solicitors against the respondent for outstanding fees the judge held that the solicitors had been negligent in failing to advise the respondent that she might be eligible for public funding, and dismissed their claim, giving judgment for the respondent's counter-claim for the money she had paid on account, save a small amount for an initial meeting. The solicitors appealed.

The appeal would be dismissed. A solicitor must be bound at the outset to consider the question whether a client might be eligible for legal aid. On the facts which were before the solicitors when they took initial instructions and arising out of a telephone conversation shortly afterwards, any reasonable solicitor would have formed the view that the respondent might be eligible for public funding. There had been no material change in circumstances between the date the respondent instructed the appellant solicitors and the date she was granted public funding by the second firm of solicitors. If the financial position of the respondent had been properly considered in the context of whether she might be eligible for public funding she would have been advised to go to a different firm at a very early stage and this she would have done.

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