Legal background and rationale for property recovered or preserved provisions in civil legal aid
The current UK legal aid provisions on clawback are derived from the precursors to the Solicitors Acts and Solicitors (Scotland) Act. Similar provisions are in section 62(1) of the Solicitors (Scotland) Act 1980. These provisions allow a solicitor acting for a privately paying client to get a charging order to secure their fees and outlays from property recovered or preserved by the private client.
The principle underlying the right of a solicitor to get payment from property recovered or preserved was explained by Lord Ormidale in O’Keefe -v- Grieves Trustees 1917 SLT 305. He explained that it was a most reasonable principle, which ensures the law agent is paid where the client’s claim has been vindicated as a result of his agent’s intervention in the litigation.
The present UK-wide legal aid provisions therefore ensure that privately paying and legally aided clients are treated in the same way.