The Community Legal Service (Funding) (Amendment No.2) Order 2011

Made: 18th August 2011

Laid before Parliament: 24th August 2011

Coming into force in accordance with article 2

The Lord Chancellor has consulted the General Council of the Bar and the Law Society in accordance with section 25(2) of that Act and has had regard to the matters specified in section 25(3) of that Act.

Citation, commencement and interpretation

1

This Order may be cited as the Community Legal Service (Funding) (Amendment No.2) Order 2011.

2

This Order comes into force—

• (a) in relation to this article, articles 1, 3, 4, 5, 6(c), 7, 8, 11, 12, 13, 14 and article 9 in so far as it relates to Parts 4 and 5 of Schedule 1 to the 2007 Order, on 3rd October 2011;

• (b) in relation to article 6(a) and (b) and article 9 in so far as it relates to Parts 1, 2 and 3 of Schedule 1 to the 2007 Order—

• (i) where funded services are provided under the 2010 Standard Civil Contract on 3rd October 2011;

• (ii) where funded services are provided under the Unified Contract on 1st February 2012;

• (c) in relation to article 9, in so far as it relates to Schedule 2 to the 2007 Order, and article 10 on 1st February 2012.

3

In this Order, “the 2007 Order” means the Community Legal Service (Funding) Order 2007[^f00002] and words and phrases used in this Order have the same meaning as in the 2007 Order.

Amendments to the 2007 Order

4

The 2007 Order is amended as follows.

5

In article 3(1), in the definition of “family proceedings”, after paragraph (i) insert—

• but excludes proceedings under the Inheritance (Provision for Family and Dependants) Act 1975[^f00003] and the Trusts of Land and Appointment of Trustees Act 1996[^f00004];

6

In article 5(2)—

• (a) in sub-paragraph (b)(i) for “200% for non family proceedings” substitute “100% for proceedings”;

• (b) in sub-paragraph (b)(ii) for “100%” substitute “50%”; and

• (c) after sub-paragraph (d) insert—

(e) must— (i) provide for payment of expert services of a type listed in Section 1 of Schedule 6 at the fixed fees or at rates not exceeding the rates set out in that section; (ii) provide that the Commission may increase the fixed fees or rates set out in Section 1 of Schedule 6 if it considers it reasonable to do so due to exceptional circumstances as defined in Section 2 of Schedule 6; and (iii) include provisions relating to the payment of expert services that accord with those set out in paragraphs 1 and 3 to 5 of Section 2 of Schedule 6.

7

In article 5A(3), omit sub-paragraphs (b) and (c).

8

After article 5B insert—

(5C) (1) This article applies where— (a) funded services are provided by a barrister in independent practice under a certificate; and (b) the funded services are not advocacy services in family proceedings to which article 5A applies. (2) Subject to paragraph (3), the Commission must fund payments to a barrister in independent practice at the hourly rates set out in Schedule 7. (3) The Commission may increase the hourly rate for junior counsel in the county court if it considers it reasonable to do so. (4) For the purposes of this article and Schedule 7— (a) “junior counsel” means a barrister in independent practice of less than 10 years call; and (b) “senior counsel” means a barrister in independent practice of 10 years call or more.

9

For Schedules 1 and 2 to the 2007 Order substitute Schedules 1 and 2 set out in Schedule 1 to this Order.

10

For paragraph 77 of Schedule 4 to the 2007 Order substitute—

(77) (1) This paragraph applies where advocacy services within article 5A(3) are provided by counsel. (2) There shall be determined on cost assessment, a figure having regard to— (i) the work reasonably done by counsel; (ii) the remuneration that would have been payable had the services been remunerated in accordance with paragraph 76 as it applied before 1st February 2012; and (iii) the remuneration that would have been payable had the services been remunerated under the provisions of the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001[^f00005]. (4) The remuneration payable to counsel is the figure determined on cost assessment in accordance with paragraph (2) reduced by ten percent.

11

In Schedule 5 to the 2007 Order, omit paragraphs 4 to 6.

12

After Schedule 5 to the 2007 Order, insert Schedules 6 and 7 set out in Schedule 2 to this Order.

Transitional Provisions

13

• (1) Where funded services are provided under a certificate and—

• (a) the application for the certificate is signed before the date this Order comes into force in relation to those funded services, regardless of whether the scope of the certificate is extended on or after that date; and

• (b) the application is received by the Commission before the expiry of 7 days after the date this Order comes into force in relation to those funded services,

the 2007 Order continues to have effect as if this Order had not been made.

14

Where funded services are provided otherwise than under a certificate and—

• (a) an application for funded services is made before the date this Order comes into force in relation to those services; or

• (b) a client was in receipt of Legal Help before the date this Order comes into force in relation to that Legal Help and the funded services are extended on or after that date to include Help at Court or Legal Representation,

the 2007 Order continues to have effect as if this Order had not been made.

SCHEDULE 1

SCHEDULE 2

Signed

Signed by authority of the Lord Chancellor

McNally — Minister of State — Ministry of Justice — 18th August 2011

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order amends the Community Legal Service (Funding) Order 2007 (S.I.2007/2441) (“the 2007 Order”). It reduces the cap on the level of enhancements to hourly rates that can be paid to 100% for civil non-family proceedings in the higher courts and 50% for all other proceedings.

Schedule 1 (fees and rates payable for funded services) and Schedule 2 (fees and rates payable for advocacy services in certain family proceedings) of the 2007 Order, are replaced by new Schedules reducing the fees and rates payable by 10%.

The funding of expert services is brought within the ambit of the 2007 Order for the first time by the insertion of paragraph (e) into article 5(2) of the 2007 Order and the insertion of Schedule 6 into the 2007 Order. These provide for the fixed fees and hourly rates to be paid for the type of expert services listed in Schedule 6.

The insertion of article 5C and Schedule 7 into the 2007 Order provide for fixed rates to be payable to barristers in independent practice where funded services are provided under a certificate and where the services are not advocacy services in family proceedings to which article 5A of the 2007 Order applies.

Section 3 of Schedule 4 to the 2007 Order deals with the remuneration of advocacy services in family proceedings not dealt with elsewhere in the 2007 Order. Article 10 of this Order amends paragraph 77 of Schedule 4 to the 2007 Order to bring the remuneration in these cases in line with the reduction in fees being made elsewhere in the 2007 Order.

Footnotes

[^f00001]: 1999 c.22. The reference in section 6 to the Lord Chancellor was changed to the Secretary of State by S.I.2003/1887 and changed back to the Lord Chancellor by S.I. 2005/3429. Section 25(8A) was inserted by section 153 of the Coroners and Justice Act 2009 (c.25).

[^f00002]: S.I.2007/2441, amended by S.I. 2008/1328, 2008/2704, 2009/2468, 2010/95 and 2011/1027.

[^f00003]: 1975 c.63.

[^f00004]: 1996 c.47.

[^f00005]: S.I.2001/1077; amended by S.I. 2003/2590, 2005/184, 2114 and 3504, 2006/2364, 2007/2443 and 3169, 2008/666, 2009/1854 and revoked by S.I. 2011/1027.

[^f00006]: 1996 c.52.

[^f00007]: 1975 c.63.

[^f00008]: 1996 c.47.