Access to Justice Act 1999

Part I — Legal Services Commission

Commission

Contempt of court.

1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to replace Commission with two bodies

2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Powers of Commission

3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Community Legal Service

Community Legal Service

4

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Funding of services

5

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Services which may be funded

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Individuals for whom services may be funded

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Code about provision of funded services

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure relating to funding code

9

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Terms of provision of funded services

10

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Costs in funded cases

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criminal Defence Service

Criminal Defence Service

12

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advice and assistance

13

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Representation

14

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Selection of representative

15

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Code of conduct

16

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Terms of provision of funded services

17

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Funding

18

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Supplementary

Foreign law

19

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Restriction of disclosure of information

20

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Misrepresentation etc

21

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Position of service providers and other parties etc

22

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Guidance

23

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consequential amendments

24

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Orders, regulations and directions

25

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation

26

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II — Other funding of legal services

Conditional fee and litigation funding agreements

Conditional fee agreements

27

• (1) For section 58 of the Courts and Legal Services Act 1990 substitute—

(58) (1) A conditional fee agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a conditional fee agreement; but (subject to subsection (5)) any other conditional fee agreement shall be unenforceable. (2) For the purposes of this section and section 58A— (a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses, or any part of them, to be payable only in specified circumstances; and (b) a conditional fee agreement provides for a success fee if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only in specified circumstances. (3) The following conditions are applicable to every conditional fee agreement— (a) it must be in writing; (b) it must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement; and (c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor. (4) The following further conditions are applicable to a conditional fee agreement which provides for a success fee— (a) it must relate to proceedings of a description specified by order made by the Lord Chancellor; (b) it must state the percentage by which the amount of the fees which would be payable if it were not a conditional fee agreement is to be increased; and (c) that percentage must not exceed the percentage specified in relation to the description of proceedings to which the agreement relates by order made by the Lord Chancellor. (5) If a conditional fee agreement is an agreement to which section 57 of the Solicitors Act 1974 (non-contentious business agreements between solicitor and client) applies, subsection (1) shall not make it unenforceable. (58A) (1) The proceedings which cannot be the subject of an enforceable conditional fee agreement are— (a) criminal proceedings, apart from proceedings under section 82 of the Environmental Protection Act 1990; and (b) family proceedings. (2) In subsection (1) “family proceedings” means proceedings under any one or more of the following— (a) the Matrimonial Causes Act 1973; (b) the Adoption Act 1976; (c) the Domestic Proceedings and Magistrates’ Courts Act 1978; (d) Part III of the Matrimonial and Family Proceedings Act 1984; (e) Parts I, II and IV of the Children Act 1989; (f) Part IV of the Family Law Act 1996; and (g) the inherent jurisdiction of the High Court in relation to children. (3) The requirements which the Lord Chancellor may prescribe under section 58(3)(c)— (a) include requirements for the person providing advocacy or litigation services to have provided prescribed information before the agreement is made; and (b) may be different for different descriptions of conditional fee agreements (and, in particular, may be different for those which provide for a success fee and those which do not). (4) In section 58 and this section (and in the definitions of “advocacy services” and “litigation services” as they apply for their purposes) “proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated. (5) Before making an order under section 58(4), the Lord Chancellor shall consult— (a) the designated judges; (b) the General Council of the Bar; (c) the Law Society; and (d) such other bodies as he considers appropriate. (6) A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any fees payable under a conditional fee agreement which provides for a success fee. (7) Rules of court may make provision with respect to the assessment of any costs which include fees payable under a conditional fee agreement (including one which provides for a success fee).

• (2) In section 120(4) of the Courts and Legal Services Act 1990 (orders and regulations subject to affirmative procedure), for “58,” substitute “ 58(4), ”.

Litigation funding agreements

28

In the Courts and Legal Services Act 1990, after section 58A (inserted by section 27 above) insert—

(58B) (1) A litigation funding agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a litigation funding agreement. (2) For the purposes of this section a litigation funding agreement is an agreement under which— (a) a person (“the funder”) agrees to fund (in whole or in part) the provision of advocacy or litigation services (by someone other than the funder) to another person (“the litigant”); and (b) the litigant agrees to pay a sum to the funder in specified circumstances. (3) The following conditions are applicable to a litigation funding agreement— (a) the funder must be a person, or person of a description, prescribed by the Lord Chancellor; (b) the agreement must be in writing; (c) the agreement must not relate to proceedings which by virtue of section 58A(1) and (2) cannot be the subject of an enforceable conditional fee agreement or to proceedings of any such description as may be prescribed by the Lord Chancellor; (d) the agreement must comply with such requirements (if any) as may be so prescribed; (e) the sum to be paid by the litigant must consist of any costs payable to him in respect of the proceedings to which the agreement relates together with an amount calculated by reference to the funder’s anticipated expenditure in funding the provision of the services; and (f) that amount must not exceed such percentage of that anticipated expenditure as may be prescribed by the Lord Chancellor in relation to proceedings of the description to which the agreement relates. (4) Regulations under subsection (3)(a) may require a person to be approved by the Lord Chancellor or by a prescribed person. (5) The requirements which the Lord Chancellor may prescribe under subsection (3)(d)— (a) include requirements for the funder to have provided prescribed information to the litigant before the agreement is made; and (b) may be different for different descriptions of litigation funding agreements. (6) In this section (and in the definitions of “advocacy services” and “litigation services” as they apply for its purposes) “proceedings” includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated. (7) Before making regulations under this section, the Lord Chancellor shall consult— (a) the designated judges; (b) the General Council of the Bar; (c) the Law Society; and (d) such other bodies as he considers appropriate. (8) A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any amount payable under a litigation funding agreement. (9) Rules of court may make provision with respect to the assessment of any costs which include fees payable under a litigation funding agreement.

Costs

Recovery of insurance premiums by way of costs

29

Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject in the case of court proceedings to rules of court, include costs in respect of the premium of the policy.

Recovery where body undertakes to meet costs liabilities

30

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rules as to costs

31

In section 51 of the Senior Courts Act 1981(costs), in subsection (2) (rules regulating matters relating to costs), insert at the end “ or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs. ”

Legal aid in Scotland

Regulations about financial limits in certain proceedings

32

In section 9(2) of the Legal Aid (Scotland) Act 1986 (application by regulations of Part II to assistance by way of representation), after paragraph (d) insert—

(dd) provide that assistance by way of representation shall be available in relation to such proceedings as may be prescribed, without reference to the financial limits under section 8 of this Act; (de) provide that section 11(2) of this Act shall not apply as respects assistance by way of representation received in relation to such proceedings as may be prescribed;

.

Recipients of disabled person’s tax credit

33

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

References by Scottish Criminal Cases Review Commission

34

In section 25(7) of the Legal Aid (Scotland) Act 1986 (legal aid in appeals), for “Secretary of State under section 124” substitute “ Scottish Criminal Cases Review Commission under section 194B ”.

Part III — Provision of legal services

Legal Services Consultative Panel

Replacement of ACLEC by Consultative Panel

35

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) In the First Schedule to the Public Records Act 1958 (definition of public records), in Part II of the Table set out at the end of paragraph 3, insert at the appropriate place—

The Legal Services Consultative Panel.

Rights of audience and rights to conduct litigation

Barristers and solicitors

36

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Rights of audience: employed advocates

37

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Employees of Legal Services Commission

38

In the Courts and Legal Services Act 1990, after section 31A (inserted by section 37 above) insert—

(31B) (1) Where a person who has a right of audience or right to conduct litigation granted by an authorised body is employed by the Legal Services Commission, or by any body established and maintained by the Legal Services Commission, any rules of the authorised body which fall within subsection (2) shall not have effect in relation to him. (2) Rules of a body fall within this subsection if they are— (a) rules of conduct prohibiting or limiting the exercise of the right on behalf of members of the public by members of the body who are employees; or (b) rules of any other description prohibiting or limiting the provision of legal services to members of the public by such members of the body, and either of the conditions specified in subsection (3) is satisfied. (3) Those conditions are— (a) that the prohibition or limitation is on the exercise of the right, or the provision of the services, otherwise than on the instructions of solicitors (or other persons acting for the members of the public); and (b) that the rules do not impose the same prohibition or limitation on members of the body who have the right but are not employees.

Rights of audience: change of authorised body

39

In the Courts and Legal Services Act 1990, after section 31B (inserted by section 38 above) insert—

(31C) (1) Where a person— (a) has at any time had, and been entitled to exercise, a right of audience before a court in relation to proceedings of any description granted by one authorised body; and (b) becomes a member of another authorised body and has a right of audience before that court in relation to that description of proceedings granted by that body, any qualification regulations of that body relating to that right shall not have effect in relation to him. (2) Subsection (1) does not apply in relation to any qualification regulations to the extent that they impose requirements relating to continuing education or training which have effect in relation to the exercise of the right by all members of the body who have the right. (3) Subsection (1) does not apply to a person if he has been banned from exercising the right of audience by the body mentioned in paragraph (a) of that subsection as a result of disciplinary proceedings and that body has not lifted the ban.

Rights to conduct litigation: barristers and legal executives

40

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Authorised bodies: designation and regulations and rules

41

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Overriding duties of advocates and litigators

42

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Minor and consequential amendments

43

Schedule 6 (which makes minor and consequential amendments relating to rights of audience and rights to conduct litigation) has effect.

Barristers and solicitors

Barristers employed by solicitors etc

44

• (1) Where a barrister . . . —

• (a) is employed by an authorised person, or

• (b) is a manager of such a person,

any rules of the General Council of the Bar which impose a prohibition or limitation on the provision of legal services shall not operate to prevent him from providing legal services to clients of the authorised person of which the barrister is an employee or a manager if either of the conditions specified in subsection (2) is satisfied.

• (2) Those conditions are—

• (a) that the prohibition or limitation is on the provision of the services otherwise than on the instructions of a solicitor (or other person acting for the client), and

• (b) that the prohibition or limitation does not apply to barristers who provide legal services but are not employees or managers of an authorised person.

• (3) In this section—

• “authorised person” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which is a reserved legal activity (within the meaning of that Act), and

• “manager” has the same meaning as in that Act (see section 207 of that Act).

Fees on application for appointment as Queen’s Counsel

45

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Bar practising certificates

46

• (1) If the General Council of the Bar makes rules prohibiting barristers from practising as specified in the rules unless authorised by a certificate issued by the Council (a “practising certificate”), the rules may include provision requiring the payment of fees to the Council by applicants for practising certificates.

• (2) Rules made by virtue of subsection (1)—

• (a) may provide for the payment of different fees by different descriptions of applicants, . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Fees for solicitors' practising certificates

47

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Law Society’s powers in relation to conduct of solicitors etc

48