Legal Aid (General) Regulations 1971

Publication Date:January 01, 1971
 
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1971No. 62 (L. 1)

LEGAL AID AND ADVICE, ENGLAND

The Legal Aid (General) Regulations 1971

13thJanuary1971

26thJanuary1971

1stFebruary1971

ARRANGEMENT OF REGULATIONS

1. Title, commencement and interpretation.

2. Effect of certificates.

3. Applications for certificates.

4. Applications on behalf of minors and patients.

5. Duties of committees receiving applications for certificates.

6. Issue of certificates.

7. Refusal of certificates.

8. Repeated refusal of certificates.

9. Amendment of certificates.

10. Appeals against decisions of local committees.

11. Emergency certificates.

12. Discharge and revocation of certificates.

13. Effect of discharge and revocation of certificates.

14. Legal aid granted after costs incurred.

15. Duties of solicitors.

16. Conduct of proceedings on behalf of assisted persons.

17. Service of notices.

18. Property recovered or preserved for and costs agreed to be paid to or awarded to an assisted person.

19. Charges upon property recovered or preserved.

20. Costs awarded against an assisted person.

21. Remuneration of counsel and solicitors in magistrates' courts.

22. Miscellaneous provisions as to costs.

23. Taxation of costs.

24. Appointment of solicitor to intervene.

25. Appeal from review of taxation.

26. The Lands Tribunal.

27. Revocations.

Schedule 1 Forms
Schedule 2 Assessment of resources of applicant for certificate relating to a claim
Schedule 3 Endorsement of papers sent to counsel
Schedule 4 Remuneration of solicitors and counsel giving legal aid in proceedings in
 magistrates' courts and courts of quarter sessions
Schedule 5 Regulations revoked

The Lord Chancellor in exercise of the powers conferred on him by sections 1, 2, 3, 4, 5, 6 and 12 of, and the Third Schedule to, the Legal Aid and Advice Act 1949(a) as amended by the Legal Aid Act 1960(b) and with the concurrence of the Treasury, hereby makes the following Regulations:—

Title, commencement and interpretation

1.—(1) These Regulations may be cited as the Legal Aid (General) Regulations 1971 and shall come into operation on 1st February 1971.

(2) The Interpretation Act 1889(c) shall apply to the interpretation of these Regulations as it applies to the interpretation of an Act of Parliament.

(3) In these regulations, unless the context otherwise requires—

"the Act" means the Legal Aid and Advice Act 1949;

"area committee" means an area committee appointed by the Council of The Law Society under the provisions of a scheme;

"appropriate area committee" means the area committee in whose area an application for a certificate has been granted or refused;

"appropriate committee" means an area committee or local committee to which an application for a certificate has been made or transferred;

"assisted person" means a person in respect of whom a certificate is in force;

"authorised summary proceedings" means the following proceedings in a magistrates' court, namely—

(a) proceedings for or relating to an order made under

(i) the Affiliation Proceedings Act 1957(d), or

(ii) the Matrimonial Proceedings (Magistrates' Courts) Act 1960(e), or

(iii) the Guardianship of Infants Acts 1886(f) and 1925(g), or

(iv) the Small Tenements Recovery Act 1838(h), and

(b) proceedings for which legal aid is authorised by the schedule to the Legal Aid (Extension of Proceedings) Regulations 1969(i);

"certificate" means a civil aid certificate issued in accordance with these regulations entitling a person to legal aid and includes an amendment to a certificate issued under regulation 9(4)(a) and an emergency certificate issued under regulation 11;

"claim" means a claim which it is desired to assert or to dispute where the question of taking, defending or being a party to proceedings before a court does not arise or has not yet arisen; but if it did arise the proceedings would or might properly be such that legal aid could be given in connection therewith under section 1 of the Act;

"the Commission" means the Supplementary Benefits Commission;

"the fund" means the legal aid fund;

"legal aid" means legal aid under Part I of the Act;

(a) 1949 c. 51.

(b) 1960 c. 28.

(c) 1889 c. 63.

(d) 1957 c. 55.

(e) 1960 c. 48.

(f) 1886 c. 27.

(g) 1925 c. 45.

(h) 1838 c. 74.

(i) S.I. 1969/921 (1969 II, p. 2800).

"Legal Aid (Assessment of Resources) Regulations" means the Legal Aid (Assessment of Resources) Regulations 1960(a), as amended(b);

"legal executive" means a fellow of the Institute of Legal Executives;

"local committee" means a local committee appointed by an area committee and includes a certifying committee set up under the provisions of a scheme;

"matrimonial proceedings" means any proceedings for divorce, nullity of marriage, judicial separation, jactitation of marriage, and includes ancillary proceedings arising therefrom;

"patient" means a person who, by reason of mental disorder within the meaning of the Mental Health Act 1959(c), is incapable of managing and administering his property and affairs;

"scheme" means a scheme made under section 8 of the Act;

"secretary" means the secretary of an appropriate committee.

(4) Where a power to do any act or exercise any jurisdiction or discretion is conferred by any provision of these regulations on a court, it may, unless it is exercisable only during the trial or hearing of the action, cause or matter be exercised by—

(a) in the House of Lords, the Clerk of the Parliaments; or

(b) a judge, master or district registrar; or

(c) in the Probate, Divorce or Admiralty Division or in a county court, the registrar.

(5) Where an area committee or local committee are required or entitled to perform any function under these regulations, that function may be performed on behalf of the committee by the secretary:

Provided that he may not—

(i) approve or refuse an application for a certificate except under regulations 5(5) and (10), and 11(2) and (3);

(ii) determine an appeal under regulation 10; or

(iii) discharge or revoke a certificate except under regulation 12(2)(a), (b), (c)(i), (iii) and (iv) and (3)(a)(i).

(6) In these Regulations, unless the context otherwise requires, a regulation referred to by number means the regulation so numbered in these Regulations, and a reference to any enactment shall be construed as a reference to that enactment as amended by any subsequent enactment.

(7) In these Regulations a form referred to by number means the form so numbered in schedule 1 or a form substantially to the like effect, with such variations as the circumstances of the particular case may require.

Effect of certificates

2.—(1) Legal aid shall be available to any person to whom a certificate has been issued in accordance with these regulations.

(a) S.I. 1960/1471 (1960 II, p. 1749).

(b) The amending instruments are S.I. 1961/555, 1962/147, 1964/1907, 1966/1348, 1969/922, 1970/1162 (1961 I, p. 1220; 1962 I, p. 115; 1964 III, p. 4239; 1966 III, p. 3676; 1969 II, p. 2802; 1970 II, p. 3931).

(c) 1959 c. 72.

(2) Any document purporting to be a certificate issued in accordance with these regulations shall, until the contrary is proved, be deemed to be a valid certificate issued to the person named therein and for the purposes there set out.

Applications for certificates

3.—(1) Any person desiring legal aid in respect of proceedings in an appellate court (other than an interlocutory appeal from a court below) may apply for a certificate—

(a) if resident in the United Kingdom or in the Republic of Ireland, to any area committee; and

(b) if resident elsewhere, to an area committee in London;

(2) Any person desiring legal aid in respect of any other proceedings or in respect of any claim may apply for a certificate—

(a) if resident in the United Kingdom or in the Republic of Ireland, to any local committee; and

(b) if resident elsewhere, to a local committee in London:

Provided that where a certificate is already in force in respect of a claim, any application in respect of proceedings relating to the claim shall be made to the appropriate area committee.

(3) Every application shall be made in writing on a form approved by The Law Society or in such other manner, being in writing, as the secretary may accept as sufficient in the circumstances of the case and shall be lodged with the secretary.

(4) An applicant for legal aid in connection with authorised summary proceedings may, with a view to expediting the issue to him of a certificate, lodge with the secretary, at the time of applying for the certificate or at any time prior to its being issued, an undertaking in a form approved by The Law Society to pay any contribution that may be assessed by the appropriate committee or its secretary in accordance with these Regulations.

(5) Every application shall state the name of the solicitor (being a member of the appropriate panel) selected by the applicant to act for him and shall also contain such other information and shall be accompanied by such documents as may be requisite to enable—

(a) the appropriate committee to determine—

(i) the nature of the proceedings or the nature of the claim in relation to which legal aid is sought and the circumstances in which legal aid is required; and

(ii) whether it is reasonable that a certificate should be granted; and

(b) the appropriate committee or the Commission to determine the disposable income, disposable capital and maximum contribution of the applicant;

and the applicant, including a person to whom a certificate has been issued on a form of undertaking under paragraph (4) shall (for the purpose of providing additional information), if required by the appropriate committee or the Commission to do so, attend for an interview or supply such further information or documents as he or they may require.

(6) The appropriate committee shall, except as is provided by regulation 5(3) and regulation 6(10), unless they shall have previously refused the application, submit to the Commission so much of it as is relevant to the determination of the disposable income and...

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