Community Legal Service (Costs) Regulations 2000

Publication Date:January 01, 2000
 
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2000No. 441

LEGAL SERVICES COMMISSION, ENGLAND AND WALES

The Community Legal Service (Costs) Regulations 2000

18thFebruary2000

25thFebruary2000

1stApril2000

The Lord Chancellor, in exercise of the powers conferred on him by sections 10, 11(2), (3) and (4)(a), (c) and (e) to (g) and section 22(1), (5) and (6) of the Access to Justice Act 1999( 1), and all other powers enabling him in that behalf, makes the following Regulations:

PART I

GENERAL

Citation and commencement

1. These Regulations may be cited as the Community Legal Service (Costs) Regulations 2000 and shall come into force on 1st April 2000.

Interpretation

2. In these Regulations:

"the Act" means the Access to Justice Act 1999;

"certificate" means a certificate issued under the Funding Code certifying a decision to fund services for the client;

"client" means an individual who receives funded services;

"Commission" means the Legal Services Commission established under section 1 of the Act;

"costs judge" has the same meaning as in the CPR;

"costs order" means an order that a party pay all or part of the costs of proceedings;

"costs order against the Commission" means an order, made under regulation 5 of the Community Legal Service (Cost Protection) Regulations 2000( 2) (but not one under regulation 6 of those Regulations), that the Commission pay all or part of the costs of a party to proceedings who has not received funded services in relation to those proceedings under a certificate, other than a certificate which has been revoked;

"cost protection" means the limit on costs awarded against a client set out in section 11(1) of the Act;

"court" includes any tribunal having the power to award costs in favour of, or against, a party;

"CPR" means the Civil Procedure Rules 1998( 3) and a reference to a Part or rule, prefixed by "CPR", means the Part or rule so numbered in the CPR;

"Financial Regulations" means the Community Legal Service (Financial) Regulations 2000( 4);

"Funding Code" means the code approved under section 9 of the Act;

"full costs" means, where a section 11(1) costs order is made against a client, the amount of costs which that client would, but for section 11(1) of the Act, have been ordered to pay;

"funded services" means services which are provided directly for a client and funded for that client by the Commission as part of the Community Legal Service under sections 4 to 11 of the Act;

"partner", in relation to a party to proceedings, means a person with whom that party lives as a couple, and includes a person with whom the party is not currently living but from whom he is not living separate and apart;

"proceedings" include proceedings in any tribunal which is a court, as defined, in this paragraph;

"receiving party" means a party in favour of whom a costs order is made;

"Regional Director" means any Regional Director appointed by the Commission in accordance with the Funding Code and any other person authorised to act on his behalf, except a supplier;

"rules of court", in relation to a tribunal, means rules or regulations made by the authority having power to make rules or regulations regulating the practice and procedure of that tribunal and, in relation to any court, includes practice directions;

"section 11(1) costs order" means a costs order against a client where cost protection applies;

"solicitor" means solicitor or other person who is an authorised litigator within the meaning of section 119(1) of the Courts and Legal Services Act 1990( 5);

"statement of resources" means:

(a) a statement, verified by a statement of truth, made by a party to proceedings setting out:(i) his income and capital and financial commitments during the previous year and, if applicable, those of his partner;(ii) his estimated future financial resources and expectations and, if applicable, those of his partner; and(iii) a declaration that he and, if applicable, his partner, has not deliberately foregone or deprived himself of any resources or expectations, particulars of any application for funding made by him in connection with the proceedings, and any other facts relevant to the determination of his resources; or(b) a statement, verified by a statement of truth, made by a client receiving funded services, setting out the information provided by the client under regulation 6 of the Financial Regulations, and stating that there has been no significant change in the client's financial circumstances since the date on which the information was provided or, as the case may be, details of any such change;

"statement of truth" has the same meaning as in CPR Part 22;

"supplier" means any person or body providing funded services to the client, including any authorised advocate (within the meaning of section 119(1) of the Courts and Legal Services Act 1990) engaged by the client's solicitor to act in proceedings.

Effect of these Regulations

3. Nothing in these Regulations shall be construed, in relation to proceedings where one or more parties are receiving, or have received, funded services, as:

(a) requiring a court to make a costs order where it would not otherwise have made a costs order; or(b) affecting the court's power to make a wasted costs order against a legal representative.

Termination of retainer where funding is withdrawn

4. - (1) The following paragraphs of this regulation apply where funding is withdrawn by revoking or discharging the client's certificate.

(2) Subject to paragraphs (3) and (4), on the revocation or discharge of the client's certificate, the retainer of any supplier acting under that certificate shall terminate immediately.

(3) Termination of retainers under paragraph (2) shall not take effect unless and until any procedures under the Funding Code for review of the decision to withdraw the client's funding are concluded, and confirm the decision to withdraw funding.

(4) The solicitor's retainer shall not terminate until he has complied with any procedures under the Funding Code that require him to send or serve notices.

PART II

COSTS ORDERS AGAINST CLIENT AND AGAINST COMMISSION

Application of regulations 6 to 13

5. Regulations 6 to 13 apply only where cost protection applies.

Security for costs

6. Where in any proceedings a client is required to give security for costs, the amount of that security shall not exceed the amount (if any) which is a reasonable one having regard to all the circumstances, including the client's financial resources and his conduct in relation to the dispute to which the proceedings relate.

Assessment of resources

7. - (1) The first £100,000 of the value of the client's interest in the main or only dwelling in which he resides shall not be taken into account in having regard to the client's resources for the purposes of section 11(1) of the Act.

(2) Where, but only to the extent that, the court considers that the circumstances are exceptional, having regard in particular to the quantity or value of the items concerned, the court may take into account the value of the client's clothes and household furniture, or the tools and implements of his trade, in having regard to the client's resources for the purposes of section 11(1) of the Act.

(3) Subject to paragraph (4), in having regard to the resources of a party for the purposes of section 11(1) of the Act, the resources of his partner shall be treated as his resources.

(4) The resources of a party's partner shall not be treated as that party's resources if the partner has a contrary interest in the dispute in respect of which the funded services are provided.

(5) Where a party is acting in a representative, fiduciary or official capacity, the court shall not take the personal resources of the party into account for the purposes of section 11(1) of the Act, but shall have regard to the value of any property or estate, or the amount of any fund out of which he is entitled to be indemnified, and may also have regard to the resources of the persons, if any, including that party where appropriate, who are beneficially interested in that property, estate or fund.

Statements of resources

8. - (1) Any person who is a party to proceedings in which another party is a client may make a statement of resources and file it with the court.

(2) A person making and filing a statement of resources under paragraph (1) shall serve a copy of it on the client.

(3) Where a copy of a statement of resources has been served under paragraph (2) not less than seven days before the date fixed for a hearing at which the amount to be paid under a section 11(1) costs order falls, or may fall, to be decided, the client shall also make a statement of resources, and shall produce it at that hearing.

Procedures for ordering costs against client and Commission

9. - (1) Where the court makes a section 11(1) costs order, it shall consider whether, but for cost protection, it would have made a costs order against the client and, if so, whether it would, on making the costs order, have specified the amount to be paid under that order.

(2) If the court considers that it would have made a costs order against the client, but that it would not have specified the amount to be paid under it, the court shall, when making the section 11(1) costs order:

(a) specify the amount (if any) that the client is to pay under that order if, but only if:(i) it considers that it has sufficient information before it to decide what amount is, in that case, a reasonable amount for the client to pay, in accordance with section 11(1) of the Act; and(ii) it is satisfied that, if it were to determine the full costs at that time, they would exceed the amount referred to in sub-paragraph (i);(b) otherwise, it shall not specify the amount the client is to pay under the section 11(1) costs order.

(3) If the court considers that it would have made a costs order against the client, and that it would have specified the amount to be paid under it, the court shall, when making the section...

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