Hardship applications: grave hardship or distress to client or unreasonable difficulty or delay recovering the money – Reg. 16(3)

If there is property recovered or preserved and it will be difficult for the solicitor to recover the money or it would cause grave hardship or distress to the applicant to recover the money, you can apply to have the remainder of your fees and outlays paid from the Legal Aid Fund under Regulation 16(3).

Regulation 16 (3) states:

“The Board may authorise that the requirement created by section 12(3)(c) of the Act that, before recourse to the Fund, fees and outlays shall be paid to the solicitor out of any property which is recovered or preserved for the client shall not apply in relation to the whole or any part of any such property in any case where on application by the solicitor, the Board are satisfied that –

1. payment out of the property to which the requirement would otherwise apply would cause grave hardship or distress to the client; or
2. 1. the solicitor has taken all reasonable steps to obtain payment out of the property to which the requirement would other wise apply; and
   2. payment to the solicitor out of that property could only be effected with unreasonable difficulty or after unreasonable delay.”

This section describes the issues you need to think about when drafting your application and the issues we consider when assessing the application.

If we refuse an assisted person’s application under Regulation 16 (3) (a) where grave hardship or distress has to be shown, this does not mean you will not be paid. It means that payment should be made from the property recovered or preserved instead of from the Legal Aid Fund. If you have difficulty in getting payment from that property you can apply under Regulation 16 (3) (b). However, it is important that you explain to the applicant at the initial stages of advice and assistance that they may have to pay for the work from property recovered or preserved.

In some situations we may exempt only part of your fee from payment from any property recovered or preserved. If only part of the property recovered or preserved has met the statutory tests under Regulation 16 (3) (a) or (b), your fee can be exempt to that extent only.