Lawyer abandons claim against legal aid board for £100K. AN INVESTIGATION has revealed a rogue lawyer - previously accused of making “unnecessary and excessive” claims for more than £600K Legal Aid in two years – attempted to sue the Scottish Legal Aid Board (SLAB) for £100,000 over release of a report detailing legal aid claims.
The three year court case – registered in the courts by Kilmarnock based solicitor Niels S Lockhart during December 2013 – finally came to an end in 2016 - with legal aid chiefs absolved of any blame for the release of a damning report which raised serious concerns over Lockhart’s multiple claims for legal aid public cash.
The size of the legal aid claims put Lockhart’s one man law firm higher up the scale of legal aid payments than many law firms with multiple partners, and advocates.
Last week, Legal Aid Chiefs finally admitted in a Freedom of Information disclosure to journalists - “the case A665/13 Niels Lockhart v The Scottish Legal Aid Board was a court action raised by Mr Lockhart at the Court of Session in which he sought payment of damages of £100,000 from SLAB. The court action has since been concluded.”
The response to the journalist continued: “You will recall that in early 2010 you submitted an FOI request to us, and that on 16 March 2010 we responded to your request by forwarding to you a report in relation to Mr Lockhart. This release of information to you was alleged by Mr Lockhart to be a breach of confidentiality by SLAB. SLAB defended the action.”
SLAB was represented in the action by in-house solicitors, and instructed counsel, John MacGregor, advocate.
The costs incurred by SLAB were: Counsels fees £2,100.00; Court dues £202.00; Printing cost of court documents; £92.07 Total; £2,394.07
The statement in the FOI response issued by SLAB concluded: “The court action was terminated in 2016 by agreement. Decree of absolvitor was granted in favour of SLAB together with an order of expenses in favour of SLAB in the sum of £1,750. No monies were found payable, or paid, to Mr Lockhart by SLAB.”
However, similar enquiries to the Scottish Courts and Tribunals Service (SCTS) – revealed court staff had been ordered to refuse to disclose details relating to Lockhart’s attempt to sue the Scottish Legal Aid Board.
A spokesperson for the SCTS initially said: “I’m told that typically we can’t reveal very much as you were not a party to the action. I’m told that we can say that the case concluded on 28 June 2016 and that it was a Joint minute and the defender was absolved.”
When pressed for further details, the spokesperson added: “I am afraid I cannot say what the case was about or about any amounts of money. I can say that the case was registered on 19/12/13, it was called on 24/1/14, it did not call in court, it was sisted until early 2016 then concluded on 28 June 2016.”
Kilmarnock based solicitor Niels S Lockhart was subject of a lengthy investigation by the Scottish Legal Aid Board from 2005 to late 2010 over vastly inflated claims for Civil Advice & Assistance Legal Aid.
Legal Aid chiefs then send their report to the Law Society of Scotland, who carried out an investigation into Lockhart and the detailed SLAB report.
However, sources at the Legal Aid Board revealed a string of delays during the Law Society investigation, including a series of ‘complaints reporters’ who were tasked to study the SLAB report and recommend what action if any should be taken against Lockhart.
After several Law Society investigators had either refused to look at Lockhart’s legal aid claims, or finalise a report, a version was sent to the Scottish Legal Aid Board – which legal aid chiefs claimed they could not release because they had no permission from the Law Society of Scotland.
A timeline of events established that on 5 June 2005 the Scottish Legal Aid Board sent a report to the Law Society of Scotland in terms of S32 of the Legal Aid (Scotland) Act 1986 against the sole practitioner firm of Niels S Lockhart, 71 King Street, Kilmarnock. The secret report, obtained under Freedom of Information laws, can be downloaded here: SCOTTISH LEGAL AID BOARD S31 COMPLAINT REPORT TO THE LAW SOCIETY OF SCOTLAND : NIELS S LOCKHART(pdf)
The Legal Aid Board report outlined a number of issues that had been identified during the review of case files & accounts which raised concern about Mr Lockhart’s conduct and which fell to be considered as a breach of either Regulation 31 (3) (a) & (b), relating to his conduct when acting or selected to act for persons to whom legal aid or advice and assistance is made available, and his professional conduct generally. These issues illustrated the repetitious nature of Mr Lockhart’s failure to charge fees “actually, necessarily and reasonable incurred, due regard being bad to economy”
The heads of complaint submitted by the Scottish Legal Aid Board to the Law Society of Scotland were : (1) Excessive attendances, (2) Lack of Progress, (3) Splitting/Repeating Subject Matters, (4) Inappropriate Requests for Increases in Authorised Expenditure, (5) Matters resubmitted under a different guise, (6) Standard Attendance Times, (7) Attendances for Matters Not Related to the Subject Matter of the Case, (8) Unreasonable Charges, (9) Double Charging for Correspondence, (10) Account entries not supported by Client Files, (11) Attempt to Circumvent Statutory Payment Procedure for Property Recovered or Preserved, (12) Continued Failure to act with Due Regard to Economy.
The report by the Scottish Legal Aid Board revealed that, of all firms in Scotland, the sole practitioner firm of NS Lockhart, 71 King Street, Kilmarnock, granted the highest number of advice and assistance applications for "interdict" (392) for the period January-October 2004.The next ranked firm granted 146, while the next ranked Kilmarnock firm granted only 30.
The report stated : “While conducting a selective analysis of Niels S Lockhart's Advice and Assistance accounts, it was clear from the outset that much of his business comes from "repeat clients" and/or members of the same household/family, whom he has frequently admitted to Advice and Assistance. The analysis revealed persistent patterns of excessive client attendances, the vast majority of which are irrelevant, unnecessary and conducted without due regard to economy.”
“It was also clear that Niels S Lockhart makes grants for a number of interlinked matters, where there is clearly a "cross-over" of advice. Consecutive grants are also often made as a continuation of the same matter shortly after authorised expenditure has expired on the previous grant.”
“This appears to the Board to be a deliberate scheme by Niels S. Lockhart to make consecutive grants of Advice and Assistance on behalf of the same client for the same matter, for personal gain. By so doing, he has succeeded in obtaining additional funds by utilising new initial levels of authorised expenditure for matters where, had further requests for increases in authorised expenditure under the initial grant been made to the Board, they would with every likelihood have been refused by Board staff.”
“Closer scrutiny of Niels S Lockhart's accounts and some client files has given rise to a number of other serious concerns, e.g. numerous meetings, standard of file notes, encouraging clients to advance matters while demonstrating a lack of progress.”
“After a meeting between SLAB officials & Mr Lockhart on 14 April 2005, Mr Lockhart was advised that SLAB’s Executive Team had approved of his firm’s accounts being removed from the guarantee of 30-day turnaround for payment of accounts, and that henceforth, to allow the Board the opportunity to satisfy itself that all fees and outlays had been properly incurred and charged by the firm, he would be required to submit additional supporting documentation and information with his accounts (including client files).”
The report continued : “Over the next few months, Mr Lockhart telephoned Accounts staff many times, often on a daily basis, repeatedly asking questions about the type of charge they considered acceptable or unacceptable in a variety of situations. Staff reported that, despite their having given Mr Lockhart the same answers time and again (both via correspondence and over the telephone),he continued to submit accounts with unacceptable charges. In a final effort to counter these continuing problems and to emphasis the Board’s stance in relation to the various issues of concern, our Accounts Department sent him a letter on 23 December 2005.”
“Mr Lockhart did not provide a written response to this correspondence. He did however contact Mr McCann of the Legal Defence Union, who wrote to the Board seeking a meeting with Board officials to try to resolve the payments issue. Our view however was that this would not advance matters as Mr Lockhart had been given a clear steer both after the April 2005 meeting and in the December when Accounts wrote to him on a number of matters.”
However, a key error was made by the Legal Aid Board, who stunningly failed to interview any of Mr Lockhart’s clients despite SLAB’s claims of excessive legal aid claims.
The SLAB report revealed : “Board staff have not interviewed any of Mr Lockhart’s clients as we have no reason to believe that, for example, the multitude of meetings that he held with them—sometimes more than twice daily—did not take place; our concern is that they DID take place and he has sought to claim payment for these multitudinous meetings,very few of which could be described as necessary and reasonable. We believe that such work had no regard to the principle of economy: our contention is that it is highly unlikely that any private paying client would be willing to meet the cost of the service provided by Mr Lockhart. That aside, there are cases set out in the report where it is difficult to see what advice or assistance has actually been provided. Our Accounts staff are continuing to assess a number of his accounts and examining the corresponding client files which indicate repetition of the issues that gave rise to our initial concerns.”
The report’s findings concluded : “From April 2002—March 2005, Niels S Lockhart was paid £672,585 from the Legal Aid Fund. Of this, £596,734 (89%) was in relation to Advice and Assistance cases, with £570,528 (85%) solely in relation to Civil Advice and Assistance.”
“In the Board’s view, the ranges of actions taken by Niels S. Lockhart towards achieving those payments are not those appropriate to a competent and reputable solicitor.”
“Based on the supporting evidence he arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings. In the main, these do not appear to have advantages for their further welfare or advance their case, but merely act as a mechanism for the firm to exploit the Legal Aid Fund by charging for these unnecessary and unproductive meetings.”
“The nature of subject matters is often repeated, resulting in numerous duplicate/multiple/consecutive grants submitted under various guises, thus avoiding the Board’s computerised checks on subject matter. This pattern of conduct is deliberate,recurring and persistent, serving—in the Board’s view—as a device to generate considerable additional income for the firm to the detriment of the Scottish Legal Aid Fund.”
Further documents released by the Scottish Legal Aid Board during 2015 - Extra Payments to Niels Lockhart - in response to a Freedom of Information request revealed Niels S Lockhart was paid a further £34,711 (excl VAT) of taxpayer funded legal aid by the Legal Aid Board – even though by that time he was already barred from claiming for any further legal aid work.
Historical payment accounts published by the Scottish Legal Aid Board also reveal Lockhart received a whopping £1.2million (£1,213,700) of public cash since the Legal Aid Board began publishing the names of firms and the size of payments from 2003 onwards.
From 2003 to 2013, Neils Lockhart claimed the following amounts of publicly funded legal aid: £280,200 in 2003-2004, £321,400 in 2004-2005, £95,400 in 2005-2006, £160,800 in 2006-2007, £133,300 in 2007-2008, £82,000 in 2008-2009, £65,800 in 2009-2010, £67,400 in 2010-2011, £7,200 in 2011-2012, £200 in 2012-2013
The Sunday Mail newspaper reported on the details of the now revealed court case:
Niels Lockhart said the Scottish Legal Aid Board (SLAB) had hurt his reputation amid the release of a damning report.
By Russell Findlay 26 November 2017 Sunday Mail
A rogue lawyer demanded £100,000 of taxpayers’ cash after legal aid chiefs revealed his history of inflated claims.
Niels Lockhart, 66, said the Scottish Legal Aid Board (SLAB) damaged his reputation by releasing a damning report which laid bare “unnecessary and excessive” payments.
He accused them of breaching his confidentiality and sued them for £100,000 – but has now dropped the claim.
The Sunday Mail obtained the report in 2011. We told how Lockhart claimed more than £600,000 of legal aid in two years and was accused of deliberately ramping up expenses.
The SLAB report stated: “He arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings.”
They said the meetings merely acted as a mechanism for the firm to exploit the legal aid fund.
Legal reform campaigner Peter Cherbi, who unearthed the SLAB report through freedom of information laws, said: “Lockhart’s history of eye-watering legal aid claims was rightly subjected to public scrutiny yet he seems to see himself as the victim.”
SLAB said: “We were right to make public our complaint report to the Law Society of Scotland which set out our concerns about Mr Lockhart’s legal aid work.
“We successfully defended that decision in the court action raised against us by Mr Lockhart in which he sought payment of damages of £100,000 from SLAB. Mr Lockhart agreed to withdraw his action and pay us expenses of £1750.”
Lockhart said the decision to sue was taken after advice given by counsel who took the case on a no-win, no-fee basis.
He added: “The sum sued for was later altered to £30,000. There was thereafter a change in legal team who were not so optimistic.”
Lockhart claimed none of the SLAB allegations were proved to be correct and that they previously said no public funds had been compromised.
The original Sunday Mail report on Niels Lockhart in 2011 – reporting on the damning investigation of Lockhart’s legal aid claims
EXCLUSIVE: Mar 27 2011 Russell Findlay, Sunday Mail
This lawyer pocketed £600,000 Legal Aid in two years. His claims were 'excessive, unnecessary, inappropriate, deliberate and persistent' but it's all OK because watchdogs say it was never.. CRIMINAL
LEGAL AID watchdogs have accused a solicitor who took £600,000 of taxpayers' money in two years of deliberately ramping up his claims.
Niels Lockhart, 60, who runs a one-man firm in Kilmarnock, raked in £280,200 in 2004 then £321,400 the following year.
After he ignored a warning to curb his claims, the Scottish Legal Aid Board investigated before a probe team concluded that his applications were a systematic attempt to create extra fees.
But despite deciding that he routinely made "unnecessary and excessive" claims, SLAB did not call in police. They referred Lockhart to the Law Society who also decided no fraud had taken place.
The secret SLAB dossier, obtained through freedom of information laws, said: "Lockhart routinely makes consecutive grants of advice and assistance to the same clients for what appear to be similar matters submitted under a different guise.
In the board's view, the ranges of actions taken by Lockhart towards achieving those payments are not those appropriate to a competent and reputable solicitor.
"He arranges for, or permits, his clients to attend his office on numerous occasions for excessive, unnecessary and often irrelevant meetings.
"In the main, these do not appear to have advantages for their further welfare or advance their case but merely act as a mechanism for the firm to exploit the Legal Aid fund by charging for these unnecessary and unproductive meetings."
The audit discovered Lockhart's firm was granted 392 "advice and assistance" applications for clients considering civil legal actions over 10 months in 2004 - more than double the number granted to the firm making the second highest number of similar applications.
The report stated: "The analysis revealed persistent patterns of excessive client attendances, the vast majority of which are irrelevant, unnecessary and conducted without due regard to economy.
"This appears to the board to be a deliberate scheme by Lockhart to make consecutive grants of advice and assistance on behalf of the same client for the same matter for personal gain."
Slab officials warned Lockhart about his claims in April 2005 but he "continued to show contempt for the board's serious concerns regarding his practices that were discussed at that meeting".
That prompted SLAB to send their damning 13-page report to legal regulator the Law Society of Scotland in June 2006. Yet the Law Society did not report SLAB's concerns to police or refer him to the Scottish Solicitors' Discipline Tribunal. It took them another four years to even agree Lockhart should be banned from legal aid.
Last October, Lockhart's lawyer James McCann struck a deal with SLAB which allowed Lockhart to agree to quit legal aid voluntarily. He continues to do other legal work.
A slab spokesman said: "The matter was not one of fraud and, therefore, not a criminal matter. A Law Society spokeswoman said: "Our powers in this situation relate to considering the solicitor's conduct. It is not for the society to determine whether there has been fraud."
Married dad-of-two Lockhart, from Ayr, said: "There was no suggestion of any dishonesty. I voluntarily removed myself. I was going to withdraw anyway. Where did you get this report?"
Diary of Injustice continued to report on allegations surrounding Mr Lockhart and the Law Society of Scotland’s efforts to avoid a prosecution. All previous reports can be viewed HERE.
If you suspect a solicitor is committing legal aid fraud, or if you feel your own solicitor is making fraudulent legal aid claims, email Diary of Injustice at firstname.lastname@example.org