Simpson v. Law Society of England, (1987) 113 N.R. 234 (HL)

• Case Date: April 01, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 113 N.R. 234 (HL)

Simpson v. England Law Soc. (1987), 113 N.R. 234 (HL)

MLB headnote and full text

Simpson (A.P.) (appellant) v. The Law Society of England (respondents)

Indexed As: Simpson v. Law Society of England

House of Lords,

London, England

Lord Bridge of Harwich, Lord Brightman, Lord Templeman, Lord Oliver of Aylmerton and Lord Goff of Chieveley

May 20, 1987.

Summary:

Section 9(6) of the Legal Aid Act 1974 (Eng.) gave the legal aid fund a first charge on property recovered for the benefit of an assisted party. Section 97 of the Regulations conferred upon the Law Society the discretionary power to decide how and when it would enforce the charge. The policy of the Society was to refrain from enforcing the security in the case of the matrimonial home, so long as the spouse to whom it was transferred remained in residence. The society had even allowed some residences to be sold and the charge transferred to the replacement home. However, ss. 88, 91 and 93 of the Regulations stated that when money was recovered, the legal aid fund had to be reimbursed before the legally assisted party received payment. Therefore, in many situations, a spouse who received the matrimonial home through a transfer was better off than the spouse who received money from a judicial sale or a buy-out. Mrs. Simpson had received legal aid. She submitted that the Law Society also had the discretion to postpone enforcement when money was recovered and applied for declaration to that effect.

The trial court dismissed the application. Mrs. Simpson appealed.

The Court of Appeal dismissed the appeal. Mrs. Simpson appealed with the leave of the Court of Appeal.

The House of Lords dismissed the appeal.

Government Programs - Topic 1483

Legal aid - Repayment - Postponement or substitution - The Legal Aid Act 1974 (Eng.) provided that the legal aid fund had a first charge on property recovered for the legally assisted party - Section 97(2) of the Regulations allowed the Law Society to exercise its discretion as to when the security would be enforced - However, ss. 88, 91 and 93 stated that when money was recovered, the fund was to be reimbursed before the assisted party received payment - A legal aid recipient submitted that the Law Society also had discretion to postpone enforcement of the charge when money was recovered - The House of Lords held that the Law Society lacked such discretion.

Statutes - Topic 5130

Operation and effect - Enabling acts - Obligatory, mandatory, imperative and absolute acts - Whether mandatory enactment is obligatory or directory only - [See Government Programs - Topic 1483].

Cases Noticed:

Simmons v. Simmons, [1984] Fam. 17, folld. [para. 4].

R. v. Law Society; Ex parte Sexton, [1984] Q.B. 360, folld. [para. 4].

Hanlon v. Law Society, [1981] A.C. 124, dist. [para. 5].

Statutes Noticed:

Legal Aid Act 1974 (Eng.), sect. 9(6) [para. 3].

Legal Aid (General) Regulations, 1971 (Eng.), sect. 19 [para. 7].

Legal Aid (General) Regulations, S.I. 1980 No. 1894, sect. 88(a), sect. 91(1)(b), sect. 91(2)(a)(b), sect. 93(b) [para. 13]; sect. 97 [para. 7].

Authors and Works Noticed:

Legal Aid Annual Report, 1984/85 (H.C. 156 1985/86)(Eng.) generally [para. 19].

Legal Aid in England and Wales: A New Framework (March 26, 1987)(Cm. 118) generally [para. 19].

Counsel:

M.K. Lee, Q.C., and S. Oliver-Jones, for the appellant;

Duncan Matheson, for the respondent.

This appeal was heard on March 31 and April 1, 1987, by Lord Bridge of Harwich, Lord Brightman, Lord Templeman, Lord Oliver of Aylmerton and Lord Goff of Chieveley of the House of Lords. On May 20, 1987, the following speeches were delivered:

Lord Bridge of Harwich - see paragraphs 1 to 20;

Lord Oliver of Aylmerton - see paragraph 21;

Lord Brightman - see paragraph 22;

Lord Templeman - see paragraph 23;

Lord Goff of Chieveley - see paragraph 24.