Payment of A&A fees and outlays: the hierarchy of payments and where you should look to for payment

The Act states:

“Except in so far as regulations made under this section otherwise provide, fees or outlays to which this section applies shall be paid to the solicitor as follows

1. first, out of any amount payable by the client in accordance with section 11(2) of this Act;
2. secondly, in priority to all other debts out of any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the client by any other person in respect of the matter in connection with which the advice and assistance is provided;
3. thirdly, in priority to all other debts, out of any property (of whatever nature and wherever situated) which is recovered or preserved for the client in connection with that matter, including his rights under any settlement arrived at in connection with that matter in order to avoid or bring to an end any proceedings;
4. fourthly, by the Board out of the Fund, following receipt by it of a claim submitted by the solicitor.”

This is the hierarchy of payments and means that:

• Firstly, you should seek payment of your fee from the applicant’s contribution, if there is one.
• If there is no contribution or if the contribution does not cover your fee, you should look to the expenses payable.
• If there is no contribution payable and no expenses, you should seek payment from the property recovered or preserved (often referred to as “clawback”).
• If none is available, then only as a last resort should you seek payment from the Legal Aid Fund.

When you prepare your advice and assistance account, if after deducting the contribution and any expenses there is still an amount due, you should consider whether there has been property recovered or preserved.

To help you assess this, we have set out below when property can be recovered or preserved and the exemptions that apply if there is property recovered or preserved.

You should take payment of the amount due from the property recovered or preserved.

You should only subsequently submit an advice and assistance account to us if a hardship application has been granted under Regulation 16 (3(a) or (b) or if no property has been recovered or preserved from which you can be paid.

Under civil legal aid, an account must always be sent to us. Payment of your civil legal aid account cannot be made from anywhere other than the Legal Aid Fund.