The Civil Legal Aid (General) Regulations 1989

Made: 3rd March 1989

Laid before Parliament: 8th March 1989

Coming into force: 1st April 1989

The Lord Chancellor, in exercise of the powers conferred on him by sections 2(7), 6(2), (3), 15(3), 16(6), 17, 31, 34 and 43 of and paragraph 11 of Schedule 1 to the Legal Aid Act 1988[^f00001] and all other powers enabling him in that behalf, after consulting the General Council of the Bar, the Law Society, the Supreme Court Rule Committee, the County Court Rule Committee, the Matrimonial Causes Rule Committee and the Magistrates' Courts Rule Committee and with the consent of the Treasury, hereby makes the following Regulations:–

PART I — GENERAL

Citation, commencement, revocations and transitional provisions

1

• (1) These Regulations may be cited as the Civil Legal Aid (General) Regulations 1989 and shall come into force on 1st April 1989.

• (2) The Regulations specified in Schedule 1 are hereby revoked.

• (3) Where a review by an area committee under regulation 104, 105 or 106 relates to an assessment made before 1st June 1989, paragraphs (5) and (6) of regulation 105 shall not apply and the assisted person’s solicitor or counsel may, within 21 days of the area committee’s decision, appeal in writing to a committee appointed by the Board.

Scope

2

These Regulations apply for the purposes of the provision of civil legal aid under Part IV of the Legal Aid Act 1988.

Interpretation

3

• (1) In these Regulations, unless the context otherwise requires,–

• “the Act” means the Legal Aid Act 1988;

• “affidavit of costs and resources” means an affidavit which includes the matters specified in Schedule 2 and which is sworn by a person in support of his application for an order under section 18 of the Act;

• “appropriate area committee” means the area committee in whose area an application for a certificate has been granted or refused and includes an area committee to whose area an application has been transferred under these Regulations;

• “area committee” means an area committee appointed by the Board in accordance with regulation 4;

• “Area Director” means an Area Director appointed by the Board in accordance with regulation 4 and includes any person duly authorised to act on his behalf;

• “assessment officer” means a person authorised by the Secretary of State to assess the disposable income, disposable capital and maximum contribution of the person concerned;

• “assisted person” means a person in respect of whom a certificate issued under these Regulations is in force and, for the purposes of Part XI only, includes a person in respect of whom a certificate has been, but is no longer, in force;

• “authorised summary proceedings” means proceedings in a magistrates' court for which legal aid is available by virtue of Part I of Schedule 2 to the Act;

• “certificate” means a legal aid certificate issued in accordance with these Regulations (or any regulations revoked by these Regulations) and includes an amendment to a certificate issued under Part VII and, unless the context otherwise requires, an emergency certificate;

• “contribution” means the contribution payable under section 16(1) of the Act in respect of the costs of representation;

• “court” includes in relation to proceedings tried or heard at first instance by a master or taxing master of the Supreme Court, a registrar of the Family Division of the High Court, a district registrar or the registrar of a county court, that master or registrar; in relation to proceedings on appeal to the Court of Appeal, the registrar of civil appeals;

• “disposable capital” and “disposable income” mean the amounts of capital and income available for the making of a contribution after capital and income have been computed in accordance with the Civil Legal Aid (Assessment of Resources) Regulations 1989[^f00002];

• “EEC lawyer” has the same meaning as in the European Communities (Services of Lawyers) Order 1978[^f00003];

• “emergency certificate” means a certificate issued under Part III of these Regulations;

• “fund” means the legal aid fund;

• “legal aid” means representation under Part IV of the Act;

• “legal aid area” has the meaning assigned by regulation 4(1);

• “legal executive” means a fellow of the Institute of Legal Executives;

• “master” in relation to an application for an order under section 18 of the Act in respect of proceedings in or on appeal from the Chancery or Queen’s Bench Division of the High Court, means a taxing master of the Supreme Court or a district registrar of the High Court; and in relation to such an application made in respect of proceedings in or on appeal from the Family Division of the High Court, means a registrar of the said Division or a district registrar of the High Court;

• “matrimonial proceedings” means– any proceedings with respect to which rules may be made under section 50 of the Matrimonial Causes Act 1973[^f00004]; or any proceedings in a county court under section 17 of the Married Women’s Property Act 1882[^f00005] or section 1 of or Schedule 1 to the Matrimonial Homes Act 1983[^f00006]; or any proceedings under the Domestic Violence and Matrimonial Proceedings Act 1976[^f00007];

• “maximum contribution” means the amount assessed by the assessment officer as the maximum amount which an assisted person may be liable to pay on account of his contribution;

• “patient” means a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983[^f00008], is incapable of managing and administering his property and affairs;

• “standard basis” and “indemnity basis”, in relation to the taxation of costs, have the meanings assigned by Order 62, rule 12 of the Rules of the Supreme Court 1965[^f00009];

• “substantive certificate” means a certificate issued to replace an emergency certificate which is still in force.

• (2) Any reference in these Regulations to a regulation or Schedule by number means the regulation or Schedule so numbered in these Regulations.

• (3) References in these Regulations to costs shall, unless the context otherwise requires, be construed as including references to fees, charges, disbursements, expenses and remuneration.

Area committees, Area Directors and legal aid areas

4

• (1) The Board shall, for the purposes of administering the Act, appoint–

• (a) area committees, and

• (b) Area Directors,

in respect of areas (in these Regulations referred to as “legal aid areas”) to be specified by the Board.

• (2) Area committees and Area Directors so appointed shall exercise functions respectively delegated to them by the Board or conferred on them by these Regulations.

Powers exercisable by courts

5

Where the 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–

• (a) in respect of proceedings in a county court or the Family Division of the High Court, by the registrar;

• (b) in respect of proceedings in the Chancery or Queen’s Bench Division of the High Court, by a judge, master or district registrar;

• (c) in respect of proceedings in the Court of Appeal, by a single judge of that Court or by the registrar of civil appeals;

• (d) in respect of proceedings in the House of Lords, by the Clerk of the Parliaments;

• (e) by any person who, under any enactment or rules of court, is capable of exercising the jurisdiction of the court in relation to the proceedings in question.

Powers exercisable by Area Directors

6

• (1) Where an area committee is required or entitled to perform any function under these Regulations, that function may, subject to paragraph (2), be performed on behalf of that committee by the Area Director.

• (2) Paragraph (1) shall not empower an Area Director to determine an appeal under regulation 39.

Computation of time

7

• (1) Where, under these Regulations, an act is required to be done within a specified period after or from a specified date, the period of time so fixed starts immediately after that date.

• (2) The period within which an act is required or authorised to be done under these Regulations may, if the Area Director thinks fit, be extended and any such period may be extended although the application for extension is not made until after the expiration of the period.

Service of notices

8

• (1) Where by virtue of these Regulations any document is required to be served (whether the expression “serve” or the expression “send” or “send by post” or any other expression is used) the document may be served–

• (a) if the person to be served is acting in person, by delivering it to him personally or by delivering it at, or sending it by post to, his address for service or, if he has no address for service,–

• (i) by delivering the document at his residence or by sending it by post to his last known residence, or

• (ii) in the case of a proprietor of a business, by delivering the document at his place of business or by sending it by post to his last known place of business;

• (b) if the person to be served is acting by a solicitor–

• (i) by delivering the document at, or by sending it by post to, the solicitor’s address for service, or

• (ii) where the solicitor’s address for service includes a numbered box at a document exchange, by leaving the document at that document exchange or at a document exchange which transmits documents daily to that document exchange.

• (2) Any document which is left at a document exchange in accordance with paragraph (1)(b)(ii), shall, unless the contrary is proved, be deemed to have been served on the second day after the day on which it is left.

Availability of documents to the court

9

Any document sent to a court office or registry or filed or exhibited under the provisions of these Regulations may, on request, be made available for the use of the court at any stage of the proceedings.

PART II — APPLICATIONS FOR CERTIFICATES

Applications to be made to Area Directors

10

Any person who wishes to be granted legal aid for the purposes of proceedings may apply for a certificate–

• (a) if resident in the United Kingdom, to any Area Director, or

• (b) if resident elsewhere, to the Area Director of one of the legal aid areas nominated by the Board for this purpose.

Form and lodgment of application

11

Every application–

• (a) shall be made in writing on a form approved by the Board or in such other written form as the Area Director may accept; and

• (b) shall be lodged with the Area Director.

Contents of application

12

• (1) Every application shall–

• (a) state the name of the solicitor selected by the applicant to act for him;

• (b) contain such information and be accompanied by such supporting documents (including any welfare report) as may be necessary to enable–

• (i) the Area Director to determine the nature of the proceedings in respect of which legal aid is sought and whether it is reasonable that representation should be granted; and

• (ii) the assessment officer to assess the disposable income, disposable capital and maximum contribution of the applicant.

• (2) 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 Area Director (when he applies for a certificate or at any time before it is issued) an undertaking on a form approved by the Board to pay any contribution that may be assessed under the Civil Legal Aid (Assessment of Resources) Regulations 1989.

• (3) An applicant shall, if required to do so for the purpose of providing additional material, supply such further information or documents as may be required or attend for an interview and, for this purpose, “applicant” includes a person to whom a certificate has been issued on a form of undertaking given under paragraph (2).

Applications by persons resident outside United Kingdom

13

• (1) Subject to paragraph (2), where the applicant resides outside the United Kingdom and cannot be present in England or Wales while his application is considered, his application shall be

• (a) written in English or in French; and

• (b) except where the applicant is a member of Her Majesty’s armed forces, sworn–

• (i) if the applicant resides within the Commonwealth or the Republic of Ireland, before any justice of the peace or magistrate or any person for the time being authorised by law in the place where he resides to administer an oath for any judicial or other legal purpose, or

• (ii) if the applicant resides elsewhere, before a British consular officer or any other person for the time being authorised to exercise the functions of such an officer or having authority to administer an oath in that place; and

• (c) accompanied by a statement in writing, signed by some responsible person who has knowledge of the facts, certifying that part of the application which relates to the applicant’s disposable income and disposable capital.

• (2) The requirements of paragraph (1) may be waived by the Area Director where compliance with them would cause serious difficulty, inconvenience or delay and the application otherwise satisfies the requirements of regulations 11 and 12.

Child Abduction and Custody Act 1985

14

• (1) A person whose application under the Hague Convention or the European Convention has been submitted to the Central Authority in England and Wales pursuant to section 3(2) or section 14(2) of the Child Abduction and Custody Act 1985 and on whose behalf a solicitor in England and Wales has been instructed in connection with the application–

• (a) shall be eligible to receive legal aid whether or not his financial resources are such as to make him eligible to receive it under regulations made under the Legal Aid Act 1988;

• (b) shall not be refused legal aid by virtue of subsections (2) and (3) of section 15 of the said Act of 1988; and

• (c) shall not be required to pay a contribution to the legal aid fund;

and these Regulations (with the exception of those provisions relating to assessment of disposable income and capital, eligibility on the merits and payment of contribution) shall apply accordingly.

• (2) In this regulation the “Hague Convention” means the convention defined in section 1(1) of the Child Abduction and Custody Act 1985 and the “European Convention” means the convention defined in section 12(1) of that Act.

Registration of certain foreign orders and judgments

15

• (1) This regulation applies to any person who

• (a) appeals to a magistrates' court against the registration of or the refusal to register a maintenance order made in a Hague Convention country pursuant to the Maintenance Orders (Reciprocal Enforcement) Act 1972[^f00011]; or

• (b) applies for the registration of a judgment under section 4 of the Civil Jurisdiction and Judgments Act 1982[^f00012].

• (2) Subject to paragraph (3), a person to whom this regulation applies–

• (a) shall be eligible to receive legal aid whether or not his financial resources are such as to make him eligible to receive it under regulations made under the Legal Aid Act 1988;

• (b) shall not be refused legal aid by virtue of subsections (2) and (3) of section 15 of the said Act of 1988;

• (c) shall not be required to pay a contribution to the legal aid fund,

and these Regulations (with the exception of those provisions relating to assessment of disposable income and capital, eligibility on the merits and payment of contribution) shall apply accordingly.

• (3) A person shall not be given legal aid under this regulation in respect of any appeal or application as is mentioned in paragraph (1) unless he benefited from complete or partial legal aid or exemption from costs or expenses in the country in which the maintenance order was made or the judgment was given.

• (4) In this regulation, “Hague Convention country” has the same meaning as in the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1979[^f00013] and “the Maintenance Orders (Reciprocal Enforcement) Act 1972” means that Act as applied with such exceptions, adaptations and modifications as are specified in the said 1979 Order.

Application on behalf of minors and patients

16

• (1) Subject to paragraph (5), an application for legal aid for a minor or patient shall be made on his behalf by a person of full age and capacity and,

• (a) where the application relates to proceedings which are required by rules of court to be brought or defended by a next friend or guardian ad litem, the person making the application shall be the next friend or guardian ad litem, or,

• (b) where the application relates to proceedings which have not actually begun, the person who, subject to any order of the court, intends to act in either of those capacities when the proceedings begin, shall make the application.

• (2) Except where an application is made by the Official Solicitor, the Area Director shall not issue a certificate applied for by a person on behalf of a minor or patient unless that person has signed an undertaking to pay to the Board (if required to do so) any sums which, by virtue of any provision of the Act or of these Regulations, the Area Director may require an assisted person of full age and capacity to pay upon the issue or during the currency or upon the discharge or revocation of a certificate.

• (3) Any certificate issued to a minor or patient shall be in his name, stating the name of the person who has applied for it on his behalf.

• (4) In any matter relating to the issue, amendment, revocation or discharge of a certificate issued to a minor or patient, and in any other matter which may arise between an assisted person who is a minor or patient and the Area Director, the person who is named in the certificate as the next friend or guardian ad litem of the minor or patient shall be treated for all purposes (including the receipt of notices) as the agent of the minor or patient.

• (5) An Area Director may, where the circumstances appear to make it desirable, waive all or any of the requirements of the preceding paragraphs of this regulation.

Power to transfer application to another area office

17

If it appears to an Area Director that an application could, without prejudice to the applicant, be more conveniently or appropriately dealt with in another area office, the papers relating to the application shall be transferred to that other office.

Reference to the assessment officer for assessment of resources

18

• (1) Except where he has previously refused the application, the Area Director shall refer to the assessment officer so much of it as is relevant to the assessment of the applicant’s disposable income and disposable capital; and (subject to paragraph (2) and regulation 21) no application shall be approved until the assessment officer has assessed the applicant’s disposable income, disposable capital and maximum contribution in accordance with the Civil Legal Aid (Assessment of Resources) Regulations 1989[^f00014].

• (2) Where an Area Director approves an application relating to proceedings–

• (a) in the House of Lords or on appeal from a magistrates' court in any action, cause or matter in which the applicant was an assisted person in the court below; or

• (b) by way of a new trial ordered by a court in any action, cause or matter in which the applicant was an assisted person;he shall not require the assessment officer to re-assess the assisted person’s disposable income and disposable capital.

PART III — EMERGENCY CERTIFICATES

Application for emergency certificate

19

• (1) Any person who desires legal aid as a matter of urgency may apply to an Area Director for an emergency certificate on a form approved by the Board or in such other manner as the Area Director may accept as sufficient in the circumstances of the case.

• (2) Subject to paragraph (3), an application for an emergency certificate shall contain such information and be accompanied by such documents as may be necessary to enable the Area Director to determine the nature of the proceedings for which legal aid is sought and the circumstances in which it is required and whether–

• (a) the applicant is likely to fulfil the conditions under which legal aid may be granted under the Act and these Regulations; and

• (b) it is in the interests of justice that the applicant should, as a matter of urgency, be granted legal aid;

and the applicant shall furnish such additional information and documents (if any) as may be sufficient to constitute an application for a certificate under Part II of these Regulations.

• (3) If it appears to the Area Director that the applicant cannot at the time of making the application reasonably furnish the information required under paragraph (2), or any part of it, that Area Director shall nevertheless have the power to issue an emergency certificate subject to such conditions as to the furnishing of additional information as he thinks fit.

Refusal of emergency certificate

20

An application for an emergency certificate may be refused–

• (a) on one of the grounds on which a substantive certificate may be refused under regulation 34; or

• (b) on the ground that the applicant is unlikely to fulfil the conditions under which legal aid may be granted; or

• (c) on the ground that it is not in the interests of justice that legal aid be granted as a matter of urgency.

Issue and effect of emergency certificate

21

• (1) An Area Director shall have power to approve an application made under regulation 19 and to issue an emergency certificate without reference to the assessment officer.

• (2) An emergency certificate shall not be issued in respect of authorised summary proceedings.

• (3) Where an Area Director issues an emergency certificate, he shall send the emergency certificate (together with a copy) to the solicitor selected by the applicant, and a copy of the certificate to the applicant.

• (4) An emergency certificate shall have the same effect in all respects as a substantive certificate and any person holding an emergency certificate shall, while it is in force, be deemed for the purposes of the proceedings to which the emergency certificate relates to be an assisted person.

Duration of emergency certificate

22

An emergency certificate shall remain in force until–

• (a) it is discharged or revoked in accordance with Part X of these Regulations; or

• (b) it is merged in a substantive certificate under regulation 23; or

• (c) the expiry of any period (including any extension of that period granted under regulation 24(1)) allowed for the duration of the emergency certificate.

Merger in substantive certificate

23

• (1) Where a substantive certificate is issued, the emergency certificate shall merge in the substantive certificate and the substantive certificate shall take effect from the date upon which the emergency certificate was issued in respect of the proceedings specified in the emergency certificate.

• (2) Where an emergency certificate is merged in a substantive certificate, the substantive certificate shall state–

• (a) the date of issue of the emergency certificate, and

• (b) that the emergency certificate has been continuously in force from that date until the date of the substantive certificate.

Extension and expiry of emergency certificate

24

• (1) The Area Director (whose decision shall be final) may extend the period allowed for the duration of an emergency certificate where–

• (a) the applicant is offered a substantive certificate in respect of the proceedings to which the emergency certificate relates and either fails to signify his acceptance or appeals against the terms of the offer; or

• (b) the application for a substantive certificate in respect of the proceedings to which the emergency certificate relates has been refused and either notice of appeal has been given to the appropriate area committee within the time limits laid down by regulation 36 or the time limit for doing so has not expired; or

• (c) there are exceptional circumstances.

• (2) Where an emergency certificate is extended under paragraph (1)(a) or (b), no further work may be done or steps taken under the certificate.

Notification of extension of emergency certificate

25

• (1) Where an emergency certificate is extended, the Area Director shall

• (a) forthwith issue a notice to that effect;

• (b) send the notice (together with a copy) to the solicitor acting for the person to whom the emergency certificate was issued; and

• (c) send a copy of the notice to the person to whom the emergency certificate was issued.

• (2) It shall be the duty of the solicitor to notify forthwith any counsel whom he may have instructed that the certificate has been extended.

• (3) A solicitor who receives notice that an emergency certificate has been extended under regulation 24 shall, if proceedings have begun or otherwise upon their commencement,

• (a) send a copy of the notice by post to the appropriate court office or registry, and

• (b) serve notice of the fact upon any other persons who are parties to the proceedings,

and, if any other person becomes a party to the proceedings, serve a similar notice upon that person.

PART IV — DETERMINATION OF APPLICATIONS

Power to notify other parties of application

26

• (1) On receiving an application for a certificate, the Area Director may, if he thinks fit,–

• (a) notify any party to the proceedings in respect of which the application is made; and

• (b) ask that party whether he is willing to delay taking any further step in, or in relation to, the proceedings until the application has been determined.

• (2) When the Area Director has determined the application, he shall so inform any party notified under this regulation.

Financial eligibility

27

• (1) Where the assessment officer assesses that an applicant has disposable income of an amount which makes him ineligible for legal aid, the Area Director shall refuse the application.

• (2) Where the assessment officer assesses that an applicant, having disposable income of an amount which makes him eligible for legal aid, has disposable capital of an amount which renders him liable to be refused legal aid, the Area Director shall refuse the application if it appears to him that the probable costs of the applicant in the proceedings in respect of which the application was made would not exceed the contribution payable by the applicant.

Eligibility on the merits

28

Without prejudice to the generality of section 15(2) or (3) of the Act, an application for a certificate shall only be approved after the Area Director has considered all the questions of fact or law arising in the action, cause or matter to which the application relates and the circumstances in which the application was made.

Refusal where advantage trivial or on account of nature of proceedings

29

Without prejudice to regulations 28 and 32, an application may be refused where it appears to the Area Director that–

• (a) only a trivial advantage would be gained by the applicant from the proceedings to which the application relates, or

• (b) on account of the nature of the proceedings a solicitor would not ordinarily be employed.

Refusal where other rights or facilities available

30

• (1) Without prejudice to regulation 28, an application may be refused where it appears to the Area Director that–

• (a) the applicant has available to him rights or facilities which make it unnecessary for him to obtain legal aid; or

• (b) the applicant has a reasonable expectation of obtaining financial or other help from a body of which he is a member,

and that he has failed to take all reasonable steps to enforce or obtain such rights, facilities or help (including permitting the Area Director to take those steps on his behalf).

• (2) Where it appears that the applicant has a right to be indemnified against expenses incurred in connection with any proceedings, it shall not, for the purposes of paragraph (1), be deemed to be a failure to take reasonable steps if he has not taken proceedings to enforce that right, whether for a declaration as to that right or otherwise.

Determination of contribution

31

• (1) The Area Director shall, when determining an application, also determine the sums for the time being payable on account of the applicant’s contribution and, in so doing, shall have regard to the probable cost of the proceedings.

• (2) Where the probable cost of the proceedings exceeds any maximum contribution which has been assessed, the Area Director shall determine the maximum contribution as the sum payable on account of the applicant’s contribution.

• (3) Save as otherwise provided by these Regulations, the sum determined under paragraph (1) shall not exceed the maximum contribution which has been assessed.

Proceedings in which others have an interest

32

• (1) When determining an application, the Area Director shall consider whether it is reasonable and proper for persons concerned jointly with or having the same interest as the applicant to defray so much of the costs as would be payable from the fund in respect of the proceedings if a certificate were issued.

• (2) In determining an application made by, or on behalf of, a person in connection with an action, cause or matter in which–

• (a) numerous persons have the same interest, and

• (b) in accordance with rules of court, one or more persons may sue or be sued, or may be authorised by a court to defend any such action, cause or matter on behalf of or for the benefit of all persons so interested,

the Area Director shall consider whether the rights of the applicant would be substantially prejudiced by the refusal of his application.

• (3) Where an application has been approved and the Area Director considers that it is reasonable that persons concerned jointly with or having the same interest as the applicant should contribute to the cost of the proceedings, he shall add the amount which would be payable by such persons to the sums (if any) payable by the applicant under regulation 31 and shall so notify him under regulation 43(2).

• (4) The Area Director may subsequently redetermine the amount of any additional sums payable under paragraph (3) where he is satisfied that the applicant has, without success, taken all reasonable steps (including permitting the Area Director to take those steps on his behalf) to obtain such payment.

Application in representative, fiduciary or official capacity

33

Where an application is made in a representative, fiduciary or official capacity, the Area Director–

• (a) shall take into account the value of any property or estate or the amount of any fund out of which the applicant is entitled to be idemnified and the financial resources of any persons (including the applicant if appropriate) who might benefit from the proceedings; and

• (b) may (without prejudice to regulation 28) either–

• (i) approve the application, subject to the payment from the property or resources specified in sub-paragraph (a) of any sums which he may in his discretion determine, or

• (ii) refuse the application, if he concludes that to do so would not cause hardship.

PART V — REFUSAL OF APPLICATIONS

Notification of refusal

34

• (1) Where an application for a certificate is refused on one or more of the following grounds, namely, that

• (a) the assessment officer has assessed that the applicant has disposable income which makes him ineligible for legal aid; or

• (b) the assessment officer has assessed that the applicant, having disposable income of an amount which makes him eligible for legal aid, has disposable capital of an amount which renders him liable to be refused legal aid and it appears to the Area Director that, without legal aid, the probable costs to the applicant of the proceedings in respect of which the application was made would not exceed the sums payable by the applicant on account of his contribution; or

• (c) the proceedings to which the application relates are not proceedings for which legal aid may be given; or

• (d) the applicant has not shown that he has reasonable grounds for taking, defending or being a party to the proceedings; or

• (e) it appears unreasonable that the applicant should receive legal aid in the particular circumstances of the case,

the Area Director shall notify the applicant of the grounds on which the application has been refused and inform him of the circumstances in which he may appeal to the appropriate area committee for the decision to be reviewed.

• (2) Where an application is refused on either of the grounds specified in sub-paragraphs (d) and (e) of paragraph (1), the notification given under that paragraph shall include a brief statement of the reasons why that ground applies to the applicant’s case.

Right of appeal against refusal

35

• (1) Where an Area Director refuses an application for a certificate or an applicant is dissatisfied with the terms upon which the Area Director would be prepared to issue it, the applicant may, subject to paragraph (2), appeal to the appropriate area committee.

• (2) No appeal shall lie to an area committee from–

• (a) an assessment of the assessment officer, or

• (b) any decision by an Area Director as to the sums payable on account of the applicant’s contribution or the method by which they shall be paid except a decision as to sums payable under regulation 32(3) or 33.

Time and form of appeal

36

Every appeal shall be brought by giving to the appropriate area committee, within 14 days of the date of notice of refusal of a certificate or of the terms upon which a certificate would be issued (or such longer period as the appropriate area committee may allow), notice of appeal in writing either on a form approved by the Board or in such other written form as the Area Director may accept as sufficient in the circumstances of the case.

Nature of appeal

37

Every appeal shall be by way of reconsideration of the application.

Representation at appeal or other final application

38

• (1) Upon an appeal the appellant may–

• (a) furnish further statements, whether oral or in writing, in support of his application; and

• (b) conduct the appeal himself, with or without the assistance of any person whom he may appoint for the purpose, or be represented by counsel or a solicitor or legal executive.

• (2) With any necessary modifications, paragraph (1)(a) shall apply to any appeal to an area committee and, subject to regulation 58(3), paragraph (1)(b) shall apply to any appeal to an area committee on which the committee finally determines the applicant’s right to receive legal aid.

Determination of appeal

39

• (1) The area committee shall determine the appeal in such manner as seems to it to be just and, without prejudice to the generality of the foregoing, may–

• (a) dismiss the appeal; or

• (b) direct the Area Director to offer a certificate subject to such terms and conditions as the area committee thinks fit;

• (c) direct the Area Director to settle terms and conditions on which a certificate may be offered; or

• (d) refer the matter, or any part of it, back to the Area Director for his determination or report.

• (2) Any decision of an area committee with regard to an appeal shall be final, and it shall give notice of its decision, and the reasons for it, to the appellant and to any solicitor acting for him on a form approved by the Board.

Repeated refusal of certificates

40

• (1) Where a person has applied for and been refused a certificate on three separate occasions and it appears to the Area Director to whom such person applies that his conduct may amount to an abuse of the facilities provided by the Act, then the Area Director may report the matter to the appropriate area committee.

• (2) If a report under paragraph (1) has been made, the area committee may–

• (a) enquire whether any other area office has received an application from the person named in the report;

• (b) call for a report as to the circumstances of any other such application; and

• (c) if it considers that the person named in the report has abused the facilities provided by the Act, report thereon to the Board, making such recommendations as seem to the area committee to be just.

Power to make prohibitory directions

41

• (1) The Board, on receipt of a report made under regulation 40(2)(c), shall give the person named in it an opportunity of making (either by himself or by some other person acting on his behalf) representations in writing on the matter, and shall make such other enquiries as seem to be necessary; and, if they are satisfied that his conduct has amounted to an abuse of the facilities provided by the Act, may make a direction (in this regulation referred to as a “prohibitory direction”) that no consideration shall, for a period not exceeding five years, be given by any Area Director either–

• (a) to any future application by that person for a certificate with regard to any particular matter; or

• (b) in exceptional circumstances, to any future application by him whatsoever.

• (2) The Board may in its discretion–

• (a) include within the terms of any prohibitory direction any receiver, next friend or guardian ad litem who applies for a certificate on behalf of the person referred to in the prohibitory direction; and

• (b) at any time vary or revoke any prohibitory direction in whole or in part.

• (3) Where the Board makes a prohibitory direction, it shall inform the Lord Chancellor and shall, if so requested, give him its reasons for making it.

PART VI — ISSUE AND EFFECT OF CERTIFICATES

Issue of certificate where no contribution may be payable

42

Where an application is approved relating to proceedings where an undertaking under regulation 12(2) has been given or where no contribution is (for the time being) payable, the Area Director shall–

• (a) issue a certificate;

• (b) send the certificate (together with a copy) to the solicitor selected by the applicant; and

• (c) send a copy of the certificate to the applicant together with a notice drawing the applicant’s attention to the provisions of sections 16(6) and 17(1) of the Act.

Offer of certificate where contribution payable

43

• (1) Where an application is approved for any proceedings where a contribution will be payable, the Area Director shall require–

• (a) any sums payable out of capital to be paid forthwith if the sum is readily available or, if it is not, by such time as seems to him reasonable in all the circumstances; and

• (b) any sums payable out of income to be paid by such instalments as he may direct.

• (2) The Area Director shall notify the applicant–

• (a) of the sums payable under regulation 31; and

• (b) of the terms upon which a certificate will be issued to him;

and draw to his attention the provisions of sections 16(1) and (6) and 17(1) of the Act.

Undertaking to account for sums received from third parties

44

Where the applicant–

• (a) appears to be a member of an organisation or body which might reasonably be expected to give him financial assistance in meeting the cost of the proceedings for which the applicant has applied for legal aid; and

• (b) does not appear to have any right to be indemnified by that organisation or body against expenses incurred in connection with those proceedings,

the Area Director shall require the applicant, as a term upon which the certificate will be issued, to sign an undertaking to pay to the Board (in addition to any sums payable under regulations 31 and 32) any sum which he receives from that organisation or body on account of the cost of those proceedings.

Acceptance and issue of certificate where contribution payable

45

• (1) An applicant who desires that a certificate should be issued to him on the terms notified to him by an Area Director shall, within 28 days of being so notified,–

• (a) signify his acceptance of those terms on a form approved by the Board and lodge it with the Area Director; and

• (b) if those terms require the payment of any sums of money, give an undertaking, on a form approved by the Board, to pay those sums by the method stated in the terms and, if any sum is required to be paid before the certificate is issued, make that payment accordingly.

• (2) When an applicant has complied with so many of the requirements of paragraph (1) as are relevant to his case, the Area Director shall issue a certificate and send it to the solicitor selected by the applicant.

• (3) Where an application is approved relating to authorised summary proceedings in which an undertaking under regulation 12(2) has been given, the Area Director may defer issuing a certificate until a contribution has been paid.

Scope of certificates

46

• (1) A certificate may be issued in respect of the whole or part of proceedings and may be extended to cover appellate proceedings other than those mentioned in paragraph (2).

• (2) A certificate shall not be extended to cover proceedings in the House of Lords or on appeal from a magistrates' court.

• (3) A certificate shall not relate to more than one action, cause or matter exept in the case of–

• (a) authorised summary proceedings; or

• (b) matrimonial proceedings; or

• (c) proceedings under the Guardianship of Minors Act 1971[^f00015]or the Guardianship Act 1973[^f00016]and proceedings under the Domestic Violence and Matrimonial Proceedings Act 1976[^f00017];

• (d) an application for a grant of representation which is necessary to enable the action, which is the subject matter of the certificate, to be brought;

• (e) an application under section 33 of the Supreme Court Act 1981[^f00018] or section 52 of the County Courts Act 1984[^f00019] and subsequent court proceedings; or

• (f) proceedings which, under the Act, may be taken to enforce or give effect to any order or agreement made in the proceedings to which the certificate relates; and, for the purposes of this sub-paragraph, proceedings to enforce or give effect to an agreement or order shall include proceedings in bankruptcy or to wind-up a company.

Certificates to specify parties to proceedings

47

A certificate other than one relating to matrimonial proceedings or authorised summary proceedings shall specify the parties to the proceedings in respect of which it is issued.

Power to restrict costs allowable to distant solicitor

48

• (1) Where the solicitor selected by the applicant to whom a certificate is issued carries on his practice at a place which is so far away from where his services will be required in acting under the certificate that his selection will result in significantly greater expense to the fund than would have been incurred if the applicant had selected another solicitor, the certificate may provide that the solicitor shall not be entitled to payment in respect of any additional costs or disbursements incurred by reason of the fact that he does not carry on his practice at or near the place where his services are required in acting under the certificate.

• (2) Where a certificate includes a provision under paragraph (1), payment of such additional costs or disbursements shall not be allowed on determination of the costs.

Effect of certificates

49

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 in it and for the purposes there set out and shall be received in evidence without further proof.

Notification of issue of certificates

50

• (1) Whenever an assisted person becomes a party to proceedings, or a party to proceedings becomes an assisted person, his solicitor shall forthwith–

• (a) serve all other parties to the proceedings with notice of the issue of a certificate; and

• (b) if at any time thereafter any other person becomes a party to the proceedings, forthwith serve a similar notice on that party.

• (2) Copies of the notices referred to in paragraph (1) shall form part of the papers for the use of the court in the proceedings.

• (3) Where an assisted person’s solicitor–

• (a) commences any proceedings for the assisted person in a county court; or

• (b) commences proceedings in accordance with Order 112, rule 3 or 4 of the Rules of the Supreme Court 1965[^f00020] or rule 101 or 103 of the Matrimonial Causes Rules 1977[^f00021];

and at the same time files a copy of the notice to be served in accordance with paragraph (1), a copy of that notice shall be annexed to the originating process for service.

• (4) A solicitor who receives a certificate from an Area Director shall, if proceedings have begun, or otherwise upon their commencement, send a copy of it by post to the appropriate court office or registry.

• (5) Paragraphs (1) to (4) shall not apply to authorised summary proceedings and, where an assisted person is a party to such proceedings, his solicitor shall, before or at the first hearing that takes place after the certificate has been issued, file the certificate with the clerk to the justices.

PART VII — AMENDMENT OF CERTIFICATE AND ADJUSTMENT OF CONTRIBUTION

Power to amend certificates

51

The Area Director may amend a certificate where in his opinion–

• (a) there is some mistake in the certificate; or

• (b) it has become desirable for the certificate to extend to

• (i) proceedings; or

• (ii) other steps; or

• (iii) subject to regulation 46(3), other proceedings; or

• (iv) proceedings which under the Act may be taken to enforce or give effect to any order or agreement made in the proceedings in respect of which the certificate was issued; or

• (v) the bringing of an interlocutory appeal; or

• (vi) proceedings in the Court of Justice of the European Communities on a reference to that Court for a preliminary ruling; or

• (vii) representation by an EEC lawyer; or

• (c) it has become desirable to add or substitute parties to the proceedings in respect of which the certificate was issued; or

• (d) it has become desirable for the certificate to extend to any steps having the same effect as a cross-action or as a reply thereto, or a cross-appeal; or

• (e) it has become desirable for the certificate not to extend to certain of the proceedings in respect of which it was issued; or

• (f) a change of solicitor should be authorised.

Power to alter contribution and amend certificate

52

• (1) Without prejudice to the provisions of the Civil Legal Aid (Assessment of Resources) Regulations 1989[^f00022], where the assisted person’s disposable income and disposable capital have been assessed, the Area Director may, if he considers it to be desirable, request the assessment officer to re-assess the assisted person’s financial resources and maximum contribution.

• (2) Where the Area Director has determined the assisted person’s contribution at a sum which is less than the maximum contribution and it appears likely that the costs incurred or likely to be incurred under the certificate may exceed the contribution which has been determined, he shall increase the amount payable on account of the assisted person’s contribution to the amount or likely amount of the costs or to the amount of the maximum contribution, whichever is the lesser of the two.

• (3) Without prejudice to regulation 51, the Area Director shall amend the certificate where he re-determines the amount payable on account of the assisted person’s contribution whether as a result of a re-assessment pursuant to paragraph (1) or of an increase in contribution under paragraph (2) or otherwise.

Making and determination of applications for amendment

53

Parts II and V of these Regulations shall apply, with any necessary modifications, to applications for the amendment of certificates as they apply to applications for certificates.

Procedure on issue of amendment

54

• (1) Where an Area Director amends a certificate, he shall send two copies of the amendment to the assisted person’s solicitor and one copy to the assisted person.

• (2) A solicitor who receives an amendment sent to him under paragraph (1) shall forthwith–

• (a) if proceedings have begun or otherwise upon their commencement, send a copy of the amendment by post to the appropriate court office or registry, and

• (b) except in the case of an amendment made under regulation 52, serve notice of the fact upon all other parties to the proceedings, and, if any other person becomes a party to the proceedings, serve similar notice upon that person.

• (3) The copy of the amendment sent to the appropriate court office or registry shall form part of the papers for the court in the proceedings.

• (4) Paragraphs (2) and (3) shall not apply to authorised summary proceedings, and, where an assisted person is a party to such proceedings, his solicitor shall, before or at the first hearing that takes place after the amendment has been issued, file the amendment with the clerk to the justices.

Right to show cause on application to remove limitation

55

An Area Director shall not refuse an application to amend a certificate (other than an emergency certificate) by removing a limitation imposed upon it until–

• (a) notice has been served on the assisted person that the application may be refused and his certificate discharged and that he may show cause why the application should be granted; and

• (b) the assisted person has been given an opportunity to show cause why his application should be granted.

Procedure on refusal of amendment

56

Where an Area Director refuses an application for the amendment of a certificate, he shall notify the assisted person’s solicitor in writing, stating his reasons for so doing.

Right of appeal against refusal of amendment

57

• (1) Where an Area Director refuses an application for the amendment of a certificate, the assisted person may appeal to the appropriate area committee.

• (2) An appeal shall be brought by giving notice on a form approved by the Board within 14 days of the Area Director’s decision to refuse the application.

Determination of appeal against refusal of amendment

58

• (1) Subject to paragraph (3), the area committee shall, on an appeal under regulation 57, reconsider the application and determine the appeal in such manner as seems to it to be just and, without prejudice to the generality of the foregoing, may–

• (a) dismiss the appeal; or

• (b) direct the Area Director to amend the certificate in such manner as the area committee thinks fit.

• (2) Any decision of an area committee with regard to an appeal shall be final, and it shall give notice of its decision, and the reasons for it, to the assisted person and to his solicitor in a form approved by the Board.

• (3) Nothing in this regulation or regulation 53 shall require the area committee to allow the assisted person to conduct an appeal under this regulation himself or to be represented on any such appeal if the area committee considers that such steps are unnecessary.

PART VIII — AUTHORITY TO INCUR COSTS

Instructing counsel

59

• (1) Where it appears to an assisted person’s solicitor that the proper conduct of the proceedings so requires, he may instruct counsel; but, unless authority has been given in the certificate or by the Area Director,–

• (a) counsel shall not be instructed in authorised summary proceedings; and

• (b) a Queen’s Counsel or more than one counsel shall not be instructed.

• (2) Any instructions delivered to counsel under paragraph (1) shall–

• (a) include a copy of the certificate (and any amendments to it) and any authority to incur costs under this Part of these Regulations;

• (b) be endorsed with the legal aid reference number; and

• (c) in the case of authorised summary proceedings, show the authority for counsel to be instructed;

but no fees shall be marked on any set of papers so delivered.

Power of Board to give general authority

60

The Board may give general authority to solicitors acting for assisted persons in any particular class of case to incur costs by–

• (a) obtaining a report or opinion from one or more experts or tendering expert evidence;

• (b) employing a person to provide a report or opinion (other than as an expert); or

• (c) requesting transcripts of shorthand notes or tape recordings of any proceedings;

and, if such authority is given, the Board shall specify the maximum fee payable for any such report, opinion, expert evidence or transcript.

Other cases where authority may be sought

61

• (1) Where it appears to an assisted person’s solicitor to be necessary for the proper conduct of the proceedings to incur costs by taking any of the steps specified in paragraph (2), he may, unless authority has been given in the certificate, apply to the Area Director for such authority.

• (2) The steps referred to in paragraph (1) are–

• (a) obtaining a report or opinion of an expert or tendering expert evidence in a case of a class not included in any general authority given under regulation 60; or

• (b) paying a person, not being an expert witness, a fee to prepare a report and, if required, to give evidence in a case of a class not included in any general authority given under regulation 60; or

• (c) in a case of a class included in a general authority given under regulation 60, paying a higher fee than that specified by the Board or obtaining more reports or opinions or tendering more evidence (expert or otherwise) than has been specified; or

• (d) performing an act which is either unusual in its nature or involves unusually large expenditure; or

• (e) bespeaking any transcripts of shorthand notes or tape recordings of any proceedings not included in any general authority given under regulation 60.

• (3) Where the Area Director gives authority for the taking of any step referred to in paragraph (2)(a) to (d), he shall specify the number of reports or opinions that may be obtained or the number of persons who may be authorised to give expert evidence and the maximum fee to be paid to each.

Reasons to be given for refusing authority

62

If an Area Director refuses an application for authority made under regulation 59 or 61, he shall give written reasons for his decision.

Effect of obtaining and failing to obtain authority

63

• (1) Subject to paragraph (2), no question as to the propriety of any step or act in relation to which prior authority has been obtained under regulation 59, 60 or 61 shall be raised on any taxation of costs.

• (2) Where costs are incurred in accordance with and subject to the limit imposed by a prior authority given under regulation 59, 60 or 61, no question shall be raised on any taxation as to the amount of the payment to be allowed for the step or act in relation to which the authority was given unless the solicitor or the assisted person knew or ought reasonably to have known that the purpose for which the authority was given had failed or become irrelevant or unnecessary before the costs were incurred.

• (3) Without prejudice to regulation 59, where costs are incurred in instructing a Queen’s Counsel or more than one counsel, without authority to do so having been given in the certificate or under regulation 59(1), no payment in respect of those costs shall be allowed on any taxation unless it is also allowed on an inter partes taxation.

• (4) Where costs are incurred in instructing counsel or in taking any step or doing any act for which authority may be given under regulation 60 or 61, without authority to do so having been given in the certificate or under regulation 59, 60 or 61, payment in respect of those costs may still be allowed on taxation.

Restriction on payment otherwise than from the fund

64

Where a certificate has been issued in connection with any proceedings, the assisted person’s solicitor or counsel shall not receive or be party to the making of any payment for work done in those proceedings during the currency of that certificate (whether within the scope of the certificate or otherwise) except such payments as may be made out of the fund.

PART IX — CONDUCT OF PROCEEDINGS

Restrictions on entrusting case to others

65

• (1) No solicitor or counsel acting for an assisted person shall entrust the conduct of any part of the case to any other person except another solicitor or counsel selected under section 32(1) of the Act.

• (2) Nothing in paragraph (1) shall prevent a solicitor from entrusting the conduct of any part of the case to a partner of his or to a competent and responsible representative of his employed in his office or otherwise under his immediate supervision.

Duty to report changes of circumstances

66

The assisted person shall forthwith inform his solicitor of any change in his circumstances or in the circumstances of his case, which he has reason to believe might affect the terms or the continuation of his certificate.

Duty to report abuse of legal aid

67

• (1) Where an assisted person’s solicitor or counsel has reason to believe that the assisted person has–

• (a) required his case to be conducted unreasonably so as to incur an unjustifiable expense to the fund or has required unreasonably that the case be continued; or

• (b) intentionally failed to comply with any provision of regulations made under the Act concerning the information to be furnished by him or in furnishing such information has knowingly made a false statement or false representation,the solicitor or counsel shall forthwith report the fact to the Area Director.

• (2) Where the solicitor or counsel is uncertain whether it would be reasonable for him to continue acting for the assisted person, he shall report the circumstances to the Area Director.

Power of court to refer abuse to Area Director

68

• (1) Subject to paragraph (2), at any time during the hearing of any proceedings to which an assisted person is a party, the court may, on the application of the Board or of its own motion, make an order referring to the Area Director the question whether the assisted person’s certificate should continue where the court considers that the assisted person has–

• (a) in relation to any application for a certificate, made an untrue statement as to his financial resources or has failed to disclose any material fact concerning them, whether the statement was made or the failure occurred before or after the issue of the certificate and notwithstanding that it was made or occurred in relation to an application to another area office in connection with the same proceedings; or

• (b) intentionally failed to comply with these Regulations by not furnishing to his solicitor or the Area Director any material information concerning anything other than his financial resources; or

• (c) knowingly made an untrue statement in furnishing such information;and the court shall notify the Area Director of the terms of any order so made.

• (2) No order shall be made under paragraph (1) by reason of any such mis-statement or failure as is referred to in paragraph (1)(a) if the assisted person satisfies the court that he used due care or diligence to avoid such mis-statement or failure but the assisted person’s solicitor shall nevertheless report the circumstances to the Area Director.

Duty to report on refusing or giving up case

69

• (1) A solicitor shall inform the Area Director of his reasons for refusing to act or for giving up a case after being selected.

• (2) Counsel, where he has been selected to act or is acting for an assisted person, shall inform the Area Director of his reasons for refusing to accept instructions or for giving up the case or shall, if required so to do, inform the Area Director of his reasons for entrusting it to another.

• (3) Without prejudice to any other right of a solicitor or counsel to give up a case, any solicitor or counsel may give up an assisted person’s case in the circumstances specified in regulation 67.

• (4) Where any solicitor or counsel exercises his right to give up an assisted person’s case in the circumstances specified in regulation 67, the solicitor shall make a report to the Area Director of the circumstances in which that right was exercised.

• (5) Where the Area Director to whom a report is made under paragraph (4) does not discharge or revoke the assisted person’s certificate, he shall require the assisted person to select another solicitor to act for him.

Duty to report progress of proceedings

70

• (1) An assisted person’s solicitor and his counsel (if any) shall give the Area Director such information regarding the progress and disposal of the proceedings to which the certificate relates as the Area Director may from time to time require for the purpose of performing his functions under these Regulations and, without being required so to do, the assisted person’s solicitor shall–

• (a) make a report where the assisted person declines to accept a reasonable offer of settlement or a sum which is paid into court;

• (b) notify the Area Director where a legal aid certificate is issued to another party to the proceedings.

• (2) Without prejudice to the generality of paragraph (1), an assisted person’s solicitor shall, when required so to do by the Board, make a report to the Area Director, on a form approved by the Board, specifying the grounds on which he certifies that it is reasonable for the assisted person to continue to receive legal aid in respect of the proceedings to which the certificate relates.

• (3) Where an assisted person’s solicitor fails to make a report under paragraph (2) within 21 days of the Board’s request, the Area Director shall–

• (a) give notice to him and to the assisted person that the legal aid certificate may be discharged; and

• (b) invite the assisted person to show cause why the certificate should not be discharged,

and the provisions of Part X of these Regulations shall apply, with any necessary modifications, where notice is given under sub-paragraph (a) above.

Duty to report death, etc., of assisted person

71

A solicitor who has acted or is acting for an assisted person shall, on becoming aware that the assisted person,–

• (a) has died; or

• (b) has had a bankruptcy order made against him, report that fact to the Area Director.

Duty to report completion of case

72

A solicitor shall report forthwith to the Area Director either–

• (a) upon the completion of the case if he has completed the work authorised by the certificate, or

• (b) if, for any reason, he is unable to complete the work.

Privilege, etc., not to prevent disclosure

73

• (1) No solicitor or counsel shall be precluded, by reason of any privilege arising out of the relationship between counsel, solicitor and client, from disclosing to an Area Director or an area committee any information, or from giving any opinion, which he is required to disclose or give to the Area Director or that committee under the Act or these Regulations, or which may enable them to perform their functions under the Act or these Regulations.

• (2) For the purpose of providing information under the Act or these Regulations or to enable an Area Director or an area committee to perform its functions under the Act or these Regulations, any party may disclose to an Area Director or an area committee communications in relation to the proceedings concerned sent to or by the assisted person’s solicitor, whether or not they are expressed to be “without prejudice”.

PART X — REVOCATION AND DISCHARGE OF CERTIFICATES

Effect of revocation or discharge

74

• (1) An Area Director may terminate a certificate by revoking or discharging it under this Part of these Regulations.

• (2) Subject to this Part of these Regulations, a person whose certificate is revoked shall be deemed never to have been an assisted person in relation to those proceedings except for the purposes of section 18 of the Act; and a person whose certificate is discharged shall, from the date of the discharge, cease to be an assisted person in the proceedings to which the certificate related.

Revocation or discharge of emergency certificate

75

• (1) The Area Director shall revoke an emergency certificate where the assessment officer assesses that the person to whom it was issued has disposable income of an amount which makes him ineligible for legal aid.

• (2) The Area Director shall revoke an emergency certificate where the assessment officer assesses that the person to whom it was issued, having disposable income of an amount which makes him eligible for legal aid, has disposable capital of an amount which renders him liable to be refused legal aid, and it appears to the Area Director that, without legal aid, the probable cost to him of the proceedings in respect of which the emergency certificate was issued would not exceed the contribution which would be payable by him.

• (3) The Area Director may revoke or discharge an emergency certificate if he is satisfied that the assisted person has failed to attend for an interview or to provide information or documents when required to do so under these Regulations, or has failed to accept an offer of a substantive certificate.

• (4) The Area Director may revoke or discharge an emergency certificate upon the expiry of such period (including any extension of that period granted under regulation 24(1)) as he may have allowed for the duration of the certificate.

• (5) No emergency certificate shall be revoked under paragraph (3) until–

• (a) notice has been served on the assisted person and his solicitor that the Area Director may do so and that the assisted person may show cause why the certificate should not be revoked, and

• (b) the assisted person has been given an opportunity to show cause why his certificate should not be revoked.

• (6) Where notice is served under paragraph (5), no further work may be done or steps taken under the certificate unless authorised by the Area Director.

Discharge of certificate on financial grounds

76

• (1) The Area Director shall discharge a certificate (other than an emergency certificate) from such date as he considers appropriate where the assessment officer assesses that the person to whom it was issued has disposable income of an amount which makes him ineligible for legal aid.

• (2) The Area Director shall discharge a certificate (other than an emergency certificate) from such date as he considers appropriate where the assessment officer assesses that the person to whom it was issued, having disposable income of an amount which makes him eligible for legal aid, has disposable capital of an amount which renders him liable to be refused legal aid, and it appears to the Area Director that, without legal aid, the probable cost to him of continuing the proceedings in respect of which the certificate was issued would not exceed the contribution which would be payable.

• (3) Where the Area Director considers that the current financial circumstances of the assisted person are such that he could afford to proceed without legal aid, he may, with a view to discharging the certificate, require the assessment officer to assess the assisted person’s current financial resources in accordance with the Civil Legal Aid (Assessment of Resources) Regulations 1989[^f00023] and may discharge the certificate from such date as he considers appropriate.

Discharge on the merits

77

The Area Director shall discharge a certificate from such date as he considers appropriate where, as a result of information which has come to his knowledge, he considers that–

• (a) the assisted person no longer has reasonable grounds for taking, defending or being a party to the proceedings, or for continuing to do so; or

• (b) the assisted person has required the proceedings to be conducted unreasonably so as to incur an unjustifiable expense to the fund; or

• (c) it is unreasonable in the particular circumstances that the assisted person should continue to receive legal aid.

Power to revoke or discharge for abuse of legal aid

78

• (1) Subject to paragraph (2), the Area Director may revoke or discharge a certificate where, as a result of information which has come to his knowledge, whether by a reference from the court under regulation 68 or otherwise, it appears to the Area Director that the assisted person has–

• (a) in relation to any application for a certificate, made an untrue statement as to his financial resources or has failed to disclose any material fact concerning them, whether the statement was made or the failure occurred before or after the issue of the certificate and notwithstanding that it was made or occurred in relation to an application to another area office in connection with the same proceedings; or

• (b) intentionally failed to comply with these Regulations by not furnishing to the Area Director or the solicitor any material information concerning any matter other than his financial resources; or

• (c) knowingly made an untrue statement in furnishing such information.

• (2) No certificate shall be revoked or discharged under paragraph (1) by reason of any such mis-statement or failure as is referred to in paragraph (1)(a) if the assisted person satisfies the Area Director that he used due care or diligence to avoid such mis-statement or failure.

Power to revoke or discharge for failure to provide information etc.

79

The Area Director may revoke or discharge a certificate if he is satisfied that the assisted person has failed to attend for an interview or to provide information or documents when required to do so under these Regulations.

Further power to discharge

80

The Area Director may discharge a certificate from such date as he considers appropriate–

• (a) with the consent of the assisted person; or

• (b) where the assisted person has been required to make a contribution and any payment in respect of it is more than 21 days in arrears; or

• (c) on being satisfied, by the report of the assisted person’s solicitor or otherwise, that–

• (i) the assisted person has died; or

• (ii) the assisted person has had a bankruptcy order made against him; or

• (iii) the proceedings to which the certificate relates have been disposed of; or

• (iv) the work authorised by the certificate has been completed.

Opportunity to show cause against revocation or discharge

81

• (1) Except where a certificate is discharged or revoked under regulation 75 or discharged under regulation 76 or 80(a), (b), (c)(i), (iii) or (iv), no certificate shall be revoked or discharged until–

• (a) notice has been served on the assisted person that the Area Director may revoke or discharge his certificate (as the case may be) and that he may show cause why it should not be revoked or discharged; and

• (b) the assisted person has been given an opportunity to show cause why his certificate should not be revoked or discharged.

• (2) Where an Area Director revokes or discharges a certificate after notice has been given under paragraph (1), the assisted person may appeal to the appropriate area committee against such revocation or discharge and the provisions of regulations 36 to 39 shall, with the necessary modifications, apply to the conduct of such appeals.

• (3) Any decision with regard to an appeal under paragraph (2) shall be final, and the area committee shall give notice of its decision and the reasons for it to the appellant and to any solicitor acting for him on a form approved by the Board.

Notification of revocation or discharge

82

• (1) Where an Area Director revokes or discharges an assisted person’s certificate, he shall, unless the costs have already been determined, forthwith issue a notice of revocation or a notice of discharge (as the case may be), and shall send the notice (together with a copy) to his solicitor, and shall (except where the certificate has been discharged because the assisted person has died) send a further copy of the notice to the assisted person.

• (2) A solicitor who receives a notice of revocation or a notice of discharge sent to him under paragraph (1) shall either forthwith, or if an appeal has been brought under regulation 81(2) which has been dismissed, forthwith upon receipt by him of a notice of dismissal–

• (a) serve notice of such revocation or discharge upon any other persons who are parties to the proceedings, and

• (b) inform any counsel, and if proceedings have been commenced, send a copy of the notice by post to the appropriate court office or registry.

• (3) The copy of the notice sent to the appropriate court office or registry shall form part of the papers for the use of the court in the proceedings.

• (4) Paragraphs (2) and (3) shall not apply to authorised summary proceedings and, where an assisted person is a party to such proceedings, his solicitor shall before or at the first hearing that takes place after the notice of revocation or discharge (as the case may be) has been issued, file the notice with the clerk to the justices.

• (5) Where the Area Director has considered revoking or discharging a certificate in consequence of information brought to his knowledge by any person, he may, if he thinks fit, inform that person whether or not the certificate has been revoked or discharged.

Effect of revocation or discharge on retainer

83

• (1) Upon receipt by him of a notice of revocation or discharge of a certificate, the retainer of any solicitor and counsel selected by or acting on behalf of the assisted person shall, subject to paragraph (2), either forthwith determine or, if an appeal has been brought under regulation 81(2) which has been dismissed, forthwith determine after receipt by him of a notice of such dismissal.

• (2) If an Area Director revokes or discharges a certificate and proceedings have commenced, the retainer of the solicitor shall not determine until he has sent to the appropriate court office or registry, and has served, any notice required by regulation 82.

Costs to be taxed or assessed on revocation or discharge

84

Upon the determination of a retainer under regulation 83–

• (a) the costs of the proceedings to which the certificate related, incurred by or on behalf of the person to whom it was issued, shall, as soon as is practicable after the determination of the retainer, be submitted for taxation or assessment; and

• (b) the fund shall remain liable for the payment of any costs so taxed or assessed.

Operation of statutory charge

85

• (1) Where a certificate has been revoked or discharged, section 16(6) of the Act (which provides for a charge upon property recovered or preserved for an assisted person) shall apply to any property recovered or preserved as a result of the person whose certificate has been revoked or discharged continuing to take, defend or be a party to the proceedings to which the certificate related.

• (2) For the purpose of paragraph (1), the reference to a person whose certificate has been discharged shall, where the certificate has been discharged under regulation 80(c)(i) or (ii), include his personal representatives, his trustee in bankruptcy or the Official Receiver, as the case may be.

Right to recover costs and contribution

86

• (1) Where a certificate has been revoked–

• (a) the Board shall have the right to recover from the person to whom the certificate was issued the costs paid or payable under regulation 84(b) less any amount received from him by way of contribution; and

• (b) the solicitor who has acted under the certificate shall have the right to recover from that person the difference between the amount paid or payable out of the fund and the full amount of his solicitor and own client costs.

• (2) Where a certificate has been discharged, the person to whom the certificate was issued shall remain liable for the payment of his contribution (if any) as determined or redetermined, up to the amount paid or payable by the Board under regulation 84(b) and, where he continues to take, defend or be a party to the proceedings to which the certificate related, section 17(1) of the Act shall apply in so far as the costs were incurred while he was an assisted person.

PART XI — PROPERTY AND COSTS RECOVERED FOR ASSISTED PERSONS

Money recovered to be paid to solicitor or the Board

87

• (1) Subject to regulations 89 and 94, all moneys payable to an assisted person–

• (a) by virtue of any agreement or order made in connection with the action, cause or matter to which his certificate relates, whether such agreement was made before or after the proceedings were taken; or

• (b) being moneys payable in respect of the action, cause or matter to which his certificate relates upon the distribution of property of a person who had been adjudicated bankrupt or has entered into a deed of arrangement, or of a company in liquidation; or

• (c) being moneys which were paid into court by him or on his behalf in any proceedings to which his certificate relates and which have been ordered to be repaid to him; or

• (d) being moneys standing in court to the credit of any proceedings to which his certificate relates,

shall be paid or repaid, as the case may be, to the solicitor of the assisted person or, if he is no longer represented by a solicitor, to the Board, and only the solicitor, or, as the case may be, the Board, shall be capable of giving a good discharge for moneys so payable.

• (2) Where the assisted person’s solicitor has reason to believe that an attempt may be made to circumvent the provisions of paragraph (1), he shall inform the Board.

Notice to trustee in bankruptcy, etc.

88

• (1) Where moneys become payable under regulation 87(b), the solicitor or the Board, as the case may be, shall send to the trustee in bankruptcy, the trustee or assignee of the deed of arrangement or the liquidator of the company in liquidation, as the case may be, notice that a certificate has been issued to the assisted person.

• (2) A notice sent under paragraph (1) shall operate as a request by the assisted person for payment of the moneys payable under regulation 87(b) to the assisted person’s solicitor or the Board, as the case may be, and shall be a sufficient authority for that purpose.

Exceptions to regulation 87

89

Notwithstanding the requirements of regulation 87–

• (a) payment of any sum under an order for costs in favour of an assisted person in authorised summary proceedings shall be made to the clerk to the justices, who shall pay it to the Board or as the Board shall direct, and only the clerk to the justices shall be able to give a good discharge therefor; and

• (b) where any moneys recovered or preserved for an assisted person in any proceedings have been paid into or remain in court and invested for the benefit of the assisted person, such part of those moneys as is not subject to the charge created by section 16(6) of the Act in accordance with regulation 93 may be paid to the assisted person.

Solicitor to pay moneys recovered to the Board

90

• (1) An assisted person’s solicitor shall forthwith–

• (a) inform the Area Director of any property recovered or preserved for the assisted person and send to him a copy of the order or agreement by virtue of which the property was recovered or preserved; and

• (b) subject to paragraphs (2) and (4), pay all moneys received by him under the terms of the order or agreement made in the assisted person’s favour to the Board.

• (2) Where the Area Director considers that the rights of the fund will thereby be safeguarded, he may direct the assisted person’s solicitor to–

• (a) pay to the Board under paragraph (1)(b) only such sums as, in the opinion of the Area Director, should be retained by the Board in order to safeguard the rights of the fund under any provisions of the Act and these Regulations; and

• (b) pay any other moneys to the assisted person.

• (3) Where in proceedings under any of the enactments referred to in regulation 96(1), the property recovered or preserved for the assisted person includes–

• (a) property which by order of the court or under the terms of any agreement reached is to be used as a home for the assisted person or his dependants; or

• (b) money which by order of the court or under the terms of any agreement reached is to be used to purchase a home for the assisted person or his dependants,

the assisted person’s solicitor shall forthwith so inform the Area Director.

• (4) If the Area Director considers and directs that the provisions of regulation 96 apply to any sum of money, paragraph (1)(b) above shall not apply to it and the assisted person’s solicitor shall release the money only in accordance with the provisions of regulation 96.

Enforcement of orders, etc., in favour of assisted person

91

• (1) Where in any proceedings to which an assisted person is a party–

• (a) an order or agreement is made providing for the recovery or preservation of property for the benefit of the assisted person and, by virtue of the Act, there is a first charge on the property for the benefit of the Board; or

• (b) an order or agreement is made for the payment of costs to the assisted person,

the Board may take such proceedings in its own name as may be necessary to enforce or give effect to such an order or agreement.

• (2) An assisted person may, with the consent of the appropriate Area Director, take proceedings (being proceedings for which representation may be granted under the Act) to give effect to an order or agreement referred to in regulation 87(a).

• (3) Where the Board takes proceedings, it may authorise any person to swear an affidavit, file a proof, receive a dividend or take any other step in the proceedings in its name and the costs incurred by the Board in any such proceedings shall be a first charge on any property or sum so recovered.

Retention and payment out of moneys by the Board

92

Upon receipt of moneys paid to it under this Part of these Regulations, the Board shall retain–

• (a) subject to regulation 103, any sum paid under an order or agreement for costs made in the assisted person’s favour in respect of the period covered by his certificate;

• (b) a sum equal to the amount (if any) by which any property recovered or preserved is charged for the benefit of the Board by virtue of section 16(6) of the Act; and

• (c) any costs of proceedings taken by the Board under regulation 91(1);

and shall pay the balance to the assisted person.

Operation of the statutory charge on moneys in court

93

Where any moneys recovered or preserved for an assisted person in any proceedings are ordered to be paid into or remain in court and invested for the benefit of the assisted person, the charge created by section 16(6) of the Act shall attach only to such parts of those moneys as, in the opinion of the Area Director, will be sufficient to safeguard the rights of the Board under any provisions of the Act or these Regulations and the Area Director shall notify the court in writing of the amount so attached.

Exemptions from the statutory charge

94

The charge created by section 16(6) of the Act shall not apply to–

• (a) any interim payment made in accordance with an order made under Order 29, rule 11 or 12 of the Rules of the Supreme Court 1965[^f00024], or Order 13, rule 12 of the County Court Rules 1981[^f00025], or in accordance with an agreement having the same effect as such an order;

• (b) any sum or sums ordered to be paid under section 5 of the Inheritance (Provision for Family and Dependants) Act 1975[^f00026];

• (c) any periodical payment of maintenance which, for this purpose, means money or money’s worth paid towards the support of a spouse, former spouse, child or any other person for whose support the payer has previously been responsible or has made payments;

• (d) the first £2,500 of any money, or of the value of any property, recovered or preserved by virtue of–

• (i) an order made, or deemed to be made, under the provisions of section 23(1)(c) or (f), 23(2), 24, 27(6)(c) or (f), or 35 of the Matrimonial Causes Act 1973[^f00027]; or

• (ii) an order made, or deemed to be made, under the provisions of section 2 or 6 of the Inheritance (Provision for Family and Dependants) Act 1975 or any provision repealed by that Act; or

• (iii) an order made, or deemed to be made, after 30th September 1977, under section 17 of the Married Women’s Property Act 1882[^f00028]; or

• (iv) an order made, or deemed to be made, under the provisions of section 4(2)(b) of the Affiliation Proceedings Act 1957[^f00029]; or

• (v) an order for the payment of a lump sum made, or deemed to be made, under the provisions of section 60 of the Magistrates' Courts Act 1980[^f00030]; or

• (vi) an order made, or deemed to be made, under the provisions of section 2(1)(b) or (d), 6(1) or (5), 11(2)(b) or (3)(b) or 20(2) of the Domestic Proceedings and Magistrates' Courts Act 1978[^f00031]; or

• (vii) an order made, or deemed to be made, under section 9(2)(b), 10(1)(b)(ii) or 11(b)(ii) of the Guardianship of Minors Act 1971[^f00032] or under section 11B, 11C, or 11D of that Act[^f00033]; or

• (viii) an order made, or deemed to be made, under section 34(1)(c) or 35 of the Children Act 1975[^f00034]; or