We have no specific statutory power to require an assisted person to get an award of expenses, nor to authorise an assisted person to waive a right to seek an award of expenses.
It is your responsibility to decide whether to seek an award of expenses in a case. However, an inappropriate or incorrect decision about expenses in a legal aid case may prejudice your client, or result in loss to public funds. If, in a particular case, you would normally advise a private client to seek an award of expenses, you should consider very carefully whether there are any grounds for taking a different approach in a legal aid case.
An assisted person should, wherever possible and assuming there are reasonable prospects of recovery, get an award of expenses so we can recoup the public funds spent on their behalf.
Is the opponent likely to drop their defence to the case if expenses are not sought?
In a legal aid case, as in a private case, you must weigh up whether insisting on a crave for expenses could mean further procedure, at a cost out of proportion to the expenses. Nonetheless, you should not necessarily decide against seeking expenses because the opponent states they will defend the action if expenses are not dropped.
A defender in, say, an interdict action may have an arguable case to defend on the merits, but may be content to live with the terms of an interim interdict, provided they do not have to pay expenses. If so, there may be some justification for dropping the crave for expenses to avoid the action becoming fully defended.
Might the assisted person be entitled to a refund of contribution if expenses are recovered?
You must carefully consider the assisted person’s contribution. Depending on the amount of expenses recovered from the opponent, the assisted person may be entitled to a full or partial refund of any contribution payable if expenses are recovered from the opponent. Even if the assisted person currently has a nil contribution, this could be re-assessed at some future date and a substantial contribution may become payable by the assisted person.
Is property or money likely to be recovered or preserved?
You must consider the clawback provisions in deciding whether to seek an award of expenses. If expenses are successfully recovered from the opponent, the loss to the Fund will decrease. This will reduce the amount of clawback from any property recovered or preserved by the assisted person.
Under section 17(2A) of the Act, any sum of money recovered under an award of, or agreement as to, expenses in favour of any party who is, or has been, receiving legal aid for the proceedings must be paid to us. The requirement is for any sum recovered to be paid to us, even where the client has been assisted for only part of the proceedings.
Regulation 39(2) allows us to take any proceedings needed to enforce or give effect to any award or agreement as to expenses, in our own name or in the name of the assisted person.
Where expenses are paid directly to us, their receipt is a good discharge to the payer.
You must tell us promptly when a final order is made or an agreement is reached in terms of which expenses are recoverable from the opponent. At the latest, you should tell us when you send us your account, when you must produce a copy of the interlocutor disposing of the question of expenses. In most cases, we will seek payment of the expenses from the opponent ourselves, after settling your account.
We try to secure payment of the expenses on an informal basis. If this is impossible, we may ask you to frame a judicial account, have it taxed and extract decree for expenses. We will then enforce the decree against the party liable. (The exception is if property is also recoverable from the opponent, in which case, you should assume responsibility for ensuring that the opponent pays both the principal sum (or otherwise transfers property) and the expenses.)
You should tell us as soon as possible of the terms of the decree or settlement and of the steps being taken to finalise the matter. Where you propose to enforce a decree, you need our prior approval for each step in the execution of diligence. However, if there is a special reason you failed to get this, we can give retrospective approval (see regulation 22).