The Civil Legal Aid (Statutory Charge) Regulations 2013

Made: 6th March 2013

Laid before Parliament: 7th March 2013

Coming into force: 1st April 2013

The Lord Chancellor makes the following Regulations in exercise of the powers conferred by sections 2(3), 5(2), 25(3) to (6) and 41(3)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“the Act”).

PART 1 — INTERPRETATION AND GENERAL

Citation and commencement

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These Regulations may be cited as the Civil Legal Aid (Statutory Charge) Regulations 2013 and come into force on 1st April 2013.

Interpretation

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• (1) In these Regulations—

• “the Act” means the Legal Aid, Sentencing and Punishment of Offenders Act 2012;

• “certificate” means a certificate issued under the Civil Legal Aid (Procedure) Regulations 2012 ;

• “child” means an individual under the age of 18;

• “CPR” means the Civil Procedure Rules 1998 , and a reference to a Part or a rule, prefixed by “CPR”, means the Part or rule so numbered in the CPR;

• “family enactment” has the same meaning as in paragraph 12(9) of Part 1 of Schedule 1 to the Act (civil legal services);

• “family relationship” and “matter arising out of a family relationship” have the same meaning as in paragraphs 12(7) and (8) of Part 1 of Schedule 1 to the Act ;

• “family proceedings” means—any matter which is described in any of the following paragraphs of Part 1 of Schedule 1 to the Act—paragraph 1 (care, supervision and protection of children);paragraph 9 (inherent jurisdiction of the High Court in relation to children and vulnerable adults), to the extent that the matter relates to—a child; ora vulnerable adult, but only to the extent that the matter arises out of a family relationship;paragraph 10 (unlawful removal of children);paragraph 11 (family homes and domestic abuse);paragraph 12 (victims of domestic abuse and family matters);paragraph 13 (protection of children and family matters);paragraph 14 (mediation in family disputes);paragraph 15 (children who are parties to family proceedings);paragraph 16 (forced marriage);paragraph 17 (EU and international agreements concerning children); orparagraph 18 (EU and international agreements concerning maintenance); ora matter arising out of a family relationship in respect of which the Director has made an exceptional case determination under section 10 of the Act (exceptional cases) and which is under—a family enactment; orthe Trusts of Land and Appointment of Trustees Act 1996 ;

• “legally aided party” means an individual or legal person to whom civil legal services have been made available under Part 1 of the Act (legal aid);

• “legally aided party's costs order” and “legally aided party's costs agreement” mean, respectively, an order and an agreement that another party to relevant proceedings or a relevant dispute pay all or part of the costs of the legally aided party;

• “legal aid only costs” means those costs described as such under whichever of the following contracts between the Lord Chancellor and the provider governs the provision of the civil legal services in the relevant proceedings or relevant dispute—the 2010 Standard Civil Contract;the 2013 Standard Civil Contract;the 2013 Individual Case Contract (High Cost Civil); ...the 2013 Individual Case Contract (Civil) ; the 2014 Standard Civil Contract; ... the 2014 Standard Civil Contract (Welfare Benefits); ... the 2015 Standard Civil Contract; ... the 2016 Standard Civil Contract (Welfare Benefits); ... the 2018 Standard Civil Contract; or the 2024 Standard Civil Contract,

• “maintenance” means money or money's worth paid towards the support of a former partner, child or other person for whose support the payer has previously been responsible or has made payments;

• “partner” means—a legally aided party's spouse or civil partner, from whom the party is not separated due to a breakdown in the relationship which is likely to be permanent;a person with whom the legally aided party lives as a couple; ora person with whom the legally aided party ordinarily lives as a couple, from whom the party is not separated due to a breakdown in the relationship which is likely to be permanent;

• “provider” means a person who provides civil legal services under Part 1 of the Act;

• “relevant dispute” means a dispute in connection with which civil legal services have been made available to the legally aided party;

• “relevant proceedings” means proceedings in connection with which civil legal services have been made available to the legally aided party;

• “statutory charge” means the charge created by section 25(1) of the Act (charges on property in connection with civil services); and

• “the arrangements” means arrangements made by the Lord Chancellor under section 2(1) of the Act (arrangements).

• (2) Where in these Regulations a reference is made to a form of civil legal services, that is a reference to that form of civil legal services as defined in Part 2 of the Civil Legal Aid (Merits Criteria) Regulations 2013 .

Delegation

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A function of the Lord Chancellor under these Regulations may be exercised by a person authorised for that purpose by the Lord Chancellor, or an employee of that person .

PART 2 — OPERATION OF THE STATUTORY CHARGE

Calculation of the statutory charge

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• (1) The amount of the statutory charge does not include, except where paragraph (2) or (3) applies, the cost to the Lord Chancellor of providing the following forms of civil legal services—

• (a) legal help;

• (b) help at court;

• (c) family help (lower);

• (d) family mediation; or

• (e) help with family mediation.

• (2) Where a legally aided party receives family help (higher) or legal representation, the amount of the statutory charge includes the cost to the Lord Chancellor of providing legal help, help at court, family help (lower) or help with family mediation, where made available, in connection with the same proceedings or dispute.

• (3) Where the cost of providing family help (lower) exceeds the amount which would otherwise have qualified for the standard fee, the amount of the statutory charge includes—

• (a) the cost of providing legal help and family help (lower) to the extent that those costs exceed that amount; and

• (b) any disbursements.

• (4) The amount of the statutory charge does not include any settlement fee paid in relation to family proceedings.

• (5) In this regulation, “standard fee” and “settlement fee” mean the fees set out in regulations made under section 2(3) of the Act.

Exceptions to the statutory charge

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• (1) The statutory charge does not apply to the following property recovered or preserved by a legally aided party in relevant proceedings, or in any compromise or settlement of a relevant dispute,—

• (a) any periodical payment of maintenance;

• (b) any sum or sums ordered to be paid under—

• (i) section 25B(4) (pensions) or 25C (pensions: lump sums) of the Matrimonial Causes Act 1973 ;

• (ii) section 5 of the Inheritance (Provision for Family and Dependants) Act 1975 (interim orders);

• (iii) Part 4 of the Family Law Act 1996 (family homes and domestic violence); or

• (iv) paragraph 25(2) or 26 of Schedule 5 to the Civil Partnership Act 2004 (financial relief in the High Court or a County Court etc.);

• (c) half of any redundancy payment within the meaning of Part 11 of the Employment Rights Act 1996 (redundancy payments etc.); or

• (d) any sum, payment or benefit which by virtue of any provision of, or made under, an Act of Parliament cannot be assigned or charged.

• (2) The statutory charge does not apply to—

• (a) a legally aided party's clothes or household furniture; or

• (b) the implements of a legally aided party's trade,

except where the Lord Chancellor considers that there are exceptional circumstances, having regard in particular to the value or quantity of the items concerned.

• (3) Where, by virtue of regulation 7, the statutory charge is in favour of a provider, it does not apply to a legally aided party's main or only dwelling.

• (4) Paragraphs (2) and (3) do not apply where the legally aided party is a legal person.

Partial exceptions to the statutory charge

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• (1) The following amounts do not constitute a charge on any property recovered or preserved by the legally aided party in relevant proceedings or a relevant dispute—

• (a) costs incurred by a provider as a result of fulfilling the provider's statutory obligations to a legally aided party with a disability within the meaning of the Equality Act 2010 ;

• (b) where a determination in relation to which a certificate is withdrawn (but not revoked) the cost of assessment proceedings, other than the cost of drawing up a bill for the purpose of those proceedings, under the—

• (i) CPR, Part 47 (procedure for detailed assessment of costs and default provisions); or

• (ii) Supreme Court Rules 2009, Part 7 (fees and costs).

• (2) The following amounts do not constitute a charge on any costs payable to a legally aided party under a legally aided party's costs order or costs agreement—

• (a) any contribution owed by the legally aided party under regulations made under section 23(2)(b) of the Act (payment for services);

• (b) legal aid only costs.

• (3) In this regulation, “revoked” means that a determination has been withdrawn in circumstances in which the Director has exercised the power to revoke the determination under the Civil Legal Aid (Procedure) Regulations 2012.

Statutory charge in favour of Lord Chancellor or provider

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• (1) The statutory charge is in favour of the Lord Chancellor except in the circumstances described in paragraph (2).

• (2) The statutory charge is in favour of the provider where—

• (a) regulation 4(3) applies; and

• (b) no certificate has been issued in connection with the same proceedings or dispute.

Authority to waive the statutory charge

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The Lord Chancellor may, where the statutory charge is in favour of the provider, grant the provider authority, whether in individual cases or generally, to waive all or part of the amount of the statutory charge where its enforcement would—

• (a) cause grave hardship or distress to a legally aided party; or

• (b) be unreasonably difficult because of the nature of the property.

Waiver of the statutory charge in cases of significant wider public interest

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• (1) The Lord Chancellor may, where the Lord Chancellor considers it equitable to do so, waive all or part of the amount of the statutory charge, if the following conditions are satisfied—

• (a) the Director was satisfied, in determining that a legally aided party qualified for legal representation, that the proceedings had a significant wider public interest; and

• (b) the Director in making the determination took into account that there were other claimants or potential claimants who might benefit from the proceedings.

• (2) In this regulation, “significant wider public interest” has the same meaning as in the Civil Legal Aid (Merits Criteria) Regulations 2013.

Operation of the statutory charge where certain determinations are withdrawn

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• (1) Paragraph (2) applies where a determination in relation to which a certificate was issued is withdrawn.

• (2) Where this paragraph applies, the statutory charge applies to property recovered or preserved by, or costs payable to, the legally aided party (or their personal representatives, trustee in bankruptcy or the Official Receiver) after the withdrawal of the determination in the proceedings or dispute in relation to which the determination was made.

Operation of the statutory charge on money in court

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• (1) Paragraph (2) applies where—

• (a) the statutory charge is in favour of the Lord Chancellor; and

• (b) money recovered by a legally aided party in relevant proceedings is ordered to be paid into or remain in court and invested for the benefit of that party.

• (2) Where this paragraph applies—

• (a) the statutory charge applies only to such amount of that money as in the opinion of the Lord Chancellor will be necessary to safeguard the Lord Chancellor's interests; and

• (b) the Lord Chancellor must notify the court in writing of the amount of money to which the statutory charge applies.

PART 3 — ENFORCEMENT OF THE STATUTORY CHARGE

Application of regulations 13 to 19

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• (1) Regulations 13 to 19 apply where civil legal services have been made available under a determination in relation to which a certificate was issued.

• (2) Where a legally aided party is no longer being represented by a provider, all money to which regulation 13(1) applies must be paid to the Lord Chancellor, and a reference in regulation 13(1) or 14 to the provider is to be construed as a reference to the Lord Chancellor.

Money recovered to be paid to the provider

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• (1) All money payable to or recovered by a legally aided party in relevant proceedings or a relevant dispute, whether under a court order or an agreement or otherwise, must be paid to the legally aided party's provider, and only that provider is capable of giving good discharge for the money.

• (2) Paragraph (1) does not apply to—

• (a) any periodical payment of maintenance; or

• (b) any money which, in accordance with regulation 11, is not subject to the statutory charge.

• (3) Where a legally aided party's provider, or former provider, has reason to believe that an attempt may be made to circumvent the provisions of paragraph (1), the provider or former provider must inform the Lord Chancellor immediately.

Notice to third parties

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• (1) Where money is payable under regulation 13 by a person other than a party to the proceedings, the legally aided party's provider must give that person notice in writing that civil legal services have been made available to the legally aided party by the Lord Chancellor.

• (2) Notice under paragraph (1) must state that—

• (a) it is a request that the money payable in accordance with regulation 13 is to be paid to the legally aided party's provider; and

• (b) the notice is sufficient authority for that payment to be made.

Provider to pay money recovered to the Lord Chancellor

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• (1) The legally aided party's provider must without delay—

• (a) inform the Lord Chancellor of any money or other property recovered or preserved;

• (b) send to the Lord Chancellor a copy of any order or agreement under which the money or other property was recovered or preserved; and

• (c) subject to paragraphs (2) and (3) and regulation 16, pay to the Lord Chancellor all money received by the provider by virtue of regulation 13.

• (2) Paragraph (1)(c) does not apply to any money which is not subject to the statutory charge by virtue of regulation 5.

• (3) The Lord Chancellor may authorise the legally aided party's provider to—

• (a) pay to the Lord Chancellor under paragraph (1)(c) only such amount as in the opinion of the Lord Chancellor is necessary to safeguard the Lord Chancellor's interests;

• (b) retain, after payment of any amount under sub-paragraph (a), any amount received under a legally aided party's costs order or agreement; and

• (c) pay any other money to the legally aided party.

• (4) Where the provider pays money to the Lord Chancellor in accordance with this regulation, the provider must specify what sums relate to—

• (a) costs;

• (b) damages;

• (c) interest on costs; and

• (d) interest on damages.

Interim payments

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Where—

• (a) an order under CPR rule 25.6 (interim payments), or an agreement having equivalent effect, has been made; and

• (b) the Lord Chancellor considers it essential to protect the legally aided party's interests or welfare;

the Lord Chancellor must pay, or direct the legally aided party's provider to pay, any money paid by virtue of that order or agreement to the legally aided party.

Payment out and retention of money by the Lord Chancellor

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• (1) The Lord Chancellor must pay to the provider—

• (a) any outstanding amount payable under the arrangements to the provider in respect of services provided to the legally aided party in relevant proceedings or a relevant dispute;

• (b) where costs under a legally aided party's costs order or costs agreement are received by the Lord Chancellor, any amount by which—

• (i) the amount under that order or agreement, after deduction of any amount under paragraph (2)(b),(4) or (6); exceeds

• (ii) the total amount payable under the arrangements to the provider in respect of civil legal services made available in the relevant proceedings or relevant dispute, after deduction of any legal aid only costs; and

• (c) where the costs referred to in sub-paragraph (b) are paid to the Lord Chancellor with interest, an amount equal to interest attributable to any amount payable under that sub-paragraph.

• (2) Where money is received by the Lord Chancellor under this Part, the Lord Chancellor must, subject to paragraph (6), retain—

• (a) an amount equal to that part of the total cost of the civil legal services made available to the legally aided party in relevant proceedings or a relevant dispute which form part of the statutory charge;

• (b) an amount equal to the costs incurred in taking steps under regulation 18; and

• (c) where costs are paid to the Lord Chancellor together with interest, an amount equal to that interest, less the amount of any interest payable to the provider under paragraph (1)(c).

• (3) Paragraph (4) applies where—

• (a) money is received by the Lord Chancellor under this Part; and