The Civil Legal Aid (General) Regulations 1989

• (a) within 21 days of the adjournment, the unassisted party shall file an affidavit of costs and resources together with original exhibits and any other documents necessary to support the affidavit; and

• (b) not less than 21 days before the adjourned hearing, the unassisted party shall serve notice on the Area Director of the date and time of the adjourned hearing together with a copy of his affidavit of costs and resources (and of any exhibits and supporting documents).

PART XV — PARTICULAR COURTS AND TRIBUNALS

The Lands Tribunal

148

• (1) In this regulation–

• “the tribunal” means the Lands Tribunal established by section 1(1)(b) of the Lands Tribunal Act 1949[^f00047] and

• “the registrar” means the registrar of the tribunal.

• (2) Except in so far as otherwise provided by this regulation, these Regulations shall apply to applications for legal aid for proceedings in the tribunal and in the conduct of all proceedings in it for which a certificate is granted in like manner as they apply to applications for legal aid for, and the conduct of, proceedings in any court.

• (3) Where any power to do any act or exercise any jurisdiction or discretion is conferred by these Regulations on a court it shall be exercised by the tribunal and may, unless it is exercisable only during the hearing of the proceedings, be exercised by the registrar.

• (4) Notwithstanding anything in regulation 105 or 107, the following provisions shall have effect in relation to proceedings in the tribunal to which an assisted person is a party–

• (a) where a final decision is given in writing by the tribunal, it shall, in addition to any direction as to costs, contain a direction that the costs of any assisted person shall be taxed on the standard basis and the costs shall be so taxed by the registrar;

• (b) where the proceedings are brought to an end without a direction having been given under sub-paragraph (a), the costs of any assisted person shall be taxed by the registrar on the standard basis; and

• (c) in taxing the costs of any assisted person the registrar shall have power to determine as the appropriate scale for the taxation, one of the scales of costs for the time being prescribed by the County Court Rules 1981[^f00048].

The Employment Appeal Tribunal

149

• (1) In this regulation–

• “the Appeal Tribunal” means the Employment Appeal Tribunal established under section 135(1) of the Employment Protection (Consolidation) Act 1978[^f00049]; and

• “the registrar” means the registrar of the Appeal Tribunal and includes any officer of the Appeal Tribunal authorised to act on behalf of the registrar.

• (2) Except in so far as otherwise provided by this regulation, these Regulations shall apply to applications for legal aid for proceedings in the Appeal Tribunal and to the conduct of all proceedings in it for which a certificate is granted, in the same way as they apply to applications for legal aid for, and the conduct of, proceedings in any court.

• (3) Where any power to do any act or exercise any jurisdiction or discretion is conferred by these Regulations on a court, it shall, in relation to proceedings in the Appeal Tribunal, be exercised by that Tribunal and may, unless it is exercisable only during the hearing of the proceedings by a judge or member of the Appeal Tribunal or by the Appeal Tribunal as required to be constituted by paragraph 16 of Schedule 11 to the Employment Protection (Consolidation) Act 1978, be exercised by the registrar.

• (4) Where it appears to the Area Director that an application for a certificate relates to proceedings in the Appeal Tribunal which are likely to be conducted in Scotland, he shall transmit the application forthwith to the Chief Executive of the Legal Aid Board in Scotland and shall notify the applicant and his solicitor accordingly.

• (5) Where it appears to the Area Director doubtful whether the proceedings to which an application for a certificate relates will be conducted in the Appeal Tribunal in England and Wales or in Scotland, he shall request the registrar to determine that question and that determination shall be binding upon the Area Director.

• (6) Where a certificate has been issued and there is a change of circumstances regarding the conduct of the proceedings in that, by direction of the Appeal Tribunal, they will be wholly or partly conducted in Scotland–

• (a) the certificate shall remain in force;

• (b) the assisted person shall continue to be represented in the proceedings in Scotland by the solicitor who represented him in England and that solicitor may instruct either a member of the English or the Scottish Bar; and

• (c) no question as to the propriety of appearing in Scotland shall be raised on a taxation or on an assessment in accordance with regulation 105.

• (7) The costs of an assisted person in respect of proceedings in the Appeal Tribunal shall be assessed in accordance with regulation 105 or taxed on the standard basis by a taxing master of the Supreme Court and the provisions of Order 62 of the Rules of the Supreme Court 1965 shall apply, with the necessary modifications, to the taxation of those costs as if the proceedings in the Appeal Tribunal were a cause or matter in the Supreme Court.

The Commons Commissioners

150

• (1) In this regulation, “a commissioner” means a Commons Commissioner appointed under section 17(1) of the Commons Registration Act 1965[^f00050].

• (2) Except in so far as otherwise provided by this regulation, these Regulations shall apply to applications for legal aid for proceedings before a commissioner and to the conduct of all proceedings before him for which a certificate is granted, in the same way as they apply to applications for legal aid for, and the conduct of, proceedings in any court.

• (3) Where any power to do any act or exercise any jurisdiction or discretion is conferred on a court by these Regulations, it shall, in relation to proceedings before a commissioner, be exercised by him.

• (4) The costs of an assisted person in respect of proceedings before a commissioner shall be taxed (or assessed) as if they were costs of proceedings in a county court.

The Restrictive Practices Court

151

• (1) In this regulation–

• “the Court” means the Court established by section 1 of the Restrictive Practices Court Act 1976[^f00051], and

• “the proper officer of the Court” shall have the same meaning as in the Restrictive Practices Court Rules 1976[^f00052].

• (2) Except in so far as otherwise provided by this regulation, these Regulations shall apply to applications for legal aid for proceedings in the Court under Part III of the Fair Trading Act 1973[^f00053] and to any proceedings in the Court in consequence of an order made, or undertaking given to the Court, under that Part of that Act, and to the conduct of all such proceedings for which a certificate is granted, in the same way as they apply to applications for legal aid for, and the conduct of, proceedings in any court.

• (3) Where any power to do any act or exercise any jurisdiction or discretion is conferred by these Regulations on a court it shall in relation to proceedings in the Court be exercised by that Court and may, unless it is exercisable only during the hearing of any proceedings by a judge or by the Court, be exercisable by the proper officer of the Court.

• (4) Where it appears to the Area Director that an application for a certificate relates to proceedings in the Court which are likely to be conducted in Scotland or Northern Ireland, he shall transmit the application forthwith to the Chief Executive of the Legal Aid Board in Scotland or the Secretary of the Legal Aid Department of the Incorporated Law Society of Northern Ireland, as the case may be, and shall notify the applicant and his solicitor accordingly.

• (5) Where it appears to the Area Director doubtful whether the proceedings to which an application for a certificate relates will be conducted in the Court in England and Wales or in Scotland or Northern Ireland, he shall request the proper officer of the Court to determine that question and that determination shall be binding upon the Area Director.

• (6) Where a certificate has been issued and there is a change of circumstances regarding the conduct of the proceedings in that, by order of the Court, they will be wholly or partly conducted in Scotland or Northern Ireland–

• (a) the certificate shall remain in force; and

• (b) for any proceedings in Scotland–

• (i) the assisted person shall continue to be represented in the proceedings by the solicitor who represented him in England and Wales and that solicitor may instruct a member of the English or the Scottish Bar; and

• (ii) no question as to the propriety of appearing in Scotland shall be raised on a taxation or on an assessment in accordance with regulation 105; and

• (c) for any proceedings in Northern Ireland, the assisted person shall continue to be represented in the proceedings by the solicitor who represented him in England and Wales and that solicitor shall instruct as his agent a solicitor on the panel maintained by the Incorporated Law Society of Northern Ireland of solicitors willing to act for assisted persons before the Court.

• (7) The costs of an assisted person in respect of proceedings in the Court shall be assessed in accordance with regulation 105 or taxed on the standard basis by a taxing master of the Supreme Court, and the provisions of Order 62 of the Rules of the Supreme Court 1965 shall apply, with the necessary modifications, to the taxation of those costs as if the proceedings in the Court were a cause or matter in the Supreme Court.

SCHEDULE 1 — REGULATIONS REVOKED

SCHEDULE 2 — MATTERS TO BE INCLUDED IN AN AFFIDAVIT OF COSTS AND RESOURCES

1

An estimate of the unassisted party’s inter partes costs of the proceedings in respect of which his application is made, supported by–

• (a) particulars of the estimated costs in the form of a summary bill of costs; and

• (b) all necessary documentary evidence to substantiate each item in the bill.

2

A statement, supported by evidence, of the unassisted party’s financial resources of every kind during the period beginning three years before his application is made, and of his estimated future financial resources and expectations.

3

A declaration that to the best of his knowlede and belief the unassisted party has not, and at any relevant time has not had and will not have any financial resources or expectations not specified in the statement described in paragraph 2 above.

4

A declaration that the unassisted party has not at any time deliberately foregone or deprived himself of any financial resources or expectations with a view to furthering his application.

5

A statement supported by evidence of the unassisted party’s reasonable financial commitments during the period covered by his statement described in paragraph 2 above, including, if desired, his estimated solicitor and own client costs of the proceedings in respect of which his application is made.

6

• (1) If the unassisted party has, or at any relevant time has had, a spouse, his statements and declarations described in paragraphs 2 to 5 above shall also take account of and (to the best of his knowledge and belief) specify that spouse’s financial resources, expectations and commitments, unless he or she had a contrary interest to the unassisted party in the proceedings in respect of which his application is made, or the unassisted party and his spouse are or at the relevant time were living separate and apart, or for some other reason it would be either inequitable or impracticable for the unassisted party to comply with the requirements of this paragraph.

• (2) Paragraph (1) shall apply to a man and woman who are living with each other in the same household as husband and wife as it applies to the parties to a marriage.

7

Full particulars of any application for legal aid made by the unassisted party in connection with the proceedings in respect of which his application is made, including the date and reference number of any such application and the Area Director to whom it was made.

Signed

Mackay of Clashfern, C. — Dated 28th February 1989

We consent,

Kenneth Carlisle — Alan Howarth — Two of the Lords Commissioners of Her Majesty’s Treasury — Dated 3rd March 1989

Explanatory note

(This note is not part of the Regulations)

These Regulations replace, with amendments, the Legal Aid (General) Regulations 1980 (as subsequently amended). The main changes made reflect the transfer of responsibility for administration of the legal aid scheme from the Law Society to the Legal Aid Board established by the Legal Aid Act 1988.

Other important changes are–

• (a) to require an assisted person’s solicitor, where the Board makes such a request, to certify that it is reasonable for the assisted person to continue to receive legal aid (regulation 70(2), (3));

• (b) to make provision for payments on account of costs and fees incurred by solicitors and counsel and of disbursements (regulations 100, 101);

• (c) to make fresh provision for the deferment of solicitors' profit costs (regulation 102);

• (d) to provide for work done immediately prior to the issue of an emergency certificate to be deemed in certain circumstances to be work done under the certificate (regulation 103(6));

• (e) to provide (subject to the transitional provision in regulation 1(3)) for the assessment of costs by Area Directors, for reviews of such assessments by area committees, and for appeals from such reviews to a committee appointed by the Board (regulations 104, 105 and 106);

• (f) to require solicitors to inform counsel where counsel’s fees are reduced or disallowed on assessment or taxation (regulations 105(8), 106(3) and 112); and

• (g) to enable assisted persons who have a financial interest in the taxation of costs to take steps to safeguard their interest (regulation 119).

Footnotes

[^f00001]: 1988 c. 34; section 43 is an interpretation provision and is cited because of the meanings assigned to the words “prescribed” and “regulations”.

[^f00002]: S.I. 1989/338.

[^f00003]: S.I. 1978/1910, amended by S.I. 1980/1964.

[^f00004]: 1973 c. 18; section 50 was amended by the Domicile and Matrimonial Proceedings Act 1973 (c. 45), section 6(2), by the Inheritance (Provision for Family and Dependents) Act 1975 (c. 63), section 26(2), Schedule, by the Children Act 1975 (c. 72), section 108, Schedule 3, paragraph 79, by the Administration of Justice Act 1977 (c. 38), Schedule 5 Part VI, by the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), section 89, Schedule 2, paragraph 40, by the Matrimonial Homes Act 1983 (c. 19), Schedule 2, by the County Courts Act 1984 (c. 28), section 148, Schedule 2 Part V paragraph 44, and by the Family Law Act 1986 (c. 55), sections 64, 68, Schedule 1, paragraph 15.

[^f00005]: 1882 c. 75; section 17 was amended by the Statute Law (Repeals) Act 1969 (c. 52), Schedule Part III and the Matrimonial and Family Proceedings Act 1984 (c. 42), section 43.

[^f00006]: 1983 c. 19; section 1 and Schedule 1 were amended by the Housing (Consequential Provisions) Act 1985 (c. 71), section 4, Schedule 2, paragraph 56; Schedule 1 was also amended by the Matrimonial and Family Proceedings Act 1984 (c. 42), section 46, Schedule 3.

[^f00007]: 1976 c. 50.

[^f00008]: 1983 c. 20.

[^f00009]: S.I. 1965/1776; the relevant amending instrument is S.I. 1986/632.

[^f00010]: 1985 c. 60.

[^f00011]: 1972 c. 18.

[^f00012]: 1982 c. 27.

[^f00013]: S.I. 1979/1317, amended by S.I. 1981/837, 1545, 1674 and 1983/885, 1523.

[^f00014]: S.I. 1989/338.

[^f00015]: 1971 c. 3.

[^f00016]: 1973 c. 29.

[^f00017]: 1976 c. 50.

[^f00018]: 1981 c. 54.

[^f00019]: 1984 c. 28.

[^f00020]: S.I. 1965/1776; relevant amending instruments are S.I. 1971/1955 and 1983/1181.

[^f00021]: S.I. 1977/344; the relevant amending instrument is S.I. 1986/634.

[^f00022]: S.I. 1989/338.

[^f00023]: S.I. 1989/338.

[^f00024]: S.I. 1965/1776; the relevant amending instrument is S.I. 1980/1010.

[^f00025]: S.I. 1981/1687; the relevant amending instrument is S.I. 1982/1794.

[^f00026]: 1975 c. 63.

[^f00027]: 1973 c. 18; section 27 was amended by the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), section 63(3) and section 35 was amended by the Matrimonial and Family Proceedings Act 1984 (c. 42), section 46, Schedule 1, paragraph 13.

[^f00028]: 1882 c. 75; section 17 was amended by the Statute Law (Repeals) Act 1969 (c. 52), Schedule Part III and by the Matrimonial and Family Proceedings Act 1984 (c. 42), section 43.

[^f00029]: 1957 c. 55; section 4(2) was amended by the Affiliation Proceedings (Amendment) Act 1972 (c. 49), section 1(2) and by Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), section 50(1); the 1957 Act is repealed (as from a day to be appointed) by the Family Law Reform Act 1987 (c. 42), sections 33, 34(2), Schedule 4.

[^f00030]: 1980 c. 43.

[^f00031]: 1978 c. 22; sections 6 and 11 were amended by the Matrimonial and Family Proceedings Act 1984 (c. 42), sections 10, 46, Schedule 1, paragraph 23; section 20 was amended by the Matrimonial and Family Proceedings Act 1984 (c. 42), section 11 and is repealed (as from a day to be appointed) by the Family Law Reform Act 1987 (c. 42), sections 33, 34(2), Schedule 4.

[^f00032]: 1971 c. 3; the provisions referred to were amended by the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), sections 36(1)(a), 41(2) to (4) and are repealed (as from a day to be appointed) by the Family Law Reform Act 1987 (c. 42), sections 10, 11, 34(2).

[^f00033]: Sections 11B, 11C and 11D are inserted, as from a day to be appointed, by the Family Law Reform Act 1987 (c. 42), sections 12 to 14, 33, 34; the 1971 Act, as amended, is set out in Schedule 1 to the 1987 Act.

[^f00034]: 1975 c. 72; sections 34(1) and 35 were amended by the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), sections 64, 66; section 35 is amended (as from a day to be appointed) by the Family Law Reform Act 1987 (c. 42), sections 33, 34(2), Schedule 2, paragraph 62.

[^f00035]: 1972 c. 61; section 2 was amended by the Finance Act 1975 (c. 7), section 52, Schedule 12, paragraphs 2, 18(1)–(3), by the Local Land Charges Act 1975 (c. 76), section 17(1)(b), 19, Schedule 2, by the Finance Act 1977 (c. 36), section 59, Schedule 9 Part V, by the Matrimonial Homes Act 1983 (c. 19), Schedule 2 and by the Capital Transfer Act 1984 (c. 51), Schedule 8, paragraph 3(1).

[^f00036]: 1925 c. 21.

[^f00037]: 1882 c. 75.

[^f00038]: 1973 c. 18.

[^f00039]: 1975 c. 63.

[^f00040]: 1974 c. 47; section 22 was amended by the Administration of Justice Act 1985 (c. 61), section 6.

[^f00041]: S.I. 1989/343.

[^f00042]: S.I. 1965/1776; the relevant amending instrument is S.I. 1986/632.

[^f00043]: S.I. 1981/1687; the relevant amending instrument is S.I. 1986/636.

[^f00044]: S.I. 1989/338.

[^f00045]: S.I. 1981/1687.

[^f00046]: S.I. 1965/1776; the relevant amending instrument is S.I. 1986/632.

[^f00047]: 1949 c. 42.

[^f00048]: S.I. 1981/1687; the relevant amending instrument is S.I. 1986/636.

[^f00049]: 1978 c. 44; section 135(1) was amended by the Employment Act 1980 (c. 42), Schedule 2.

[^f00050]: 1965 c. 64.

[^f00051]: 1976 c. 33.

[^f00052]: S.I. 1976/1897; the relevant amending instrument is S.I. 1982/871.

[^f00053]: 1973 c. 41.