Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
Internet Publications
Other Bills before Parliament

Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 1 — Legal aid
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Consequential amendments
Schedule 5 (consequential amendments) has effect.
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Orders, regulations and directions
(1)
Orders, regulations and directions under this Part—
(a)
may make different provision for different cases, circumstances or
5
areas,
(b)
may make provision generally or only for specified cases,
circumstances or areas, and
(c)
may make provision having effect for a specified period.
(2)
They may, in particular, make provision by reference to—
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(a)
services provided for the purposes of proceedings before a particular
court, tribunal or other body,
(b)
services provided for a particular class of individual, or
(c)
services provided for individuals selected by reference to particular
criteria or on a sampling basis.
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(3)
Orders and regulations under this Part—
(a)
may provide for a person to exercise a discretion in dealing with any
matter,
(b)
may make provision by reference to a document produced by any
person, and
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(c)
may make consequential, incidental, supplementary, transitional or
saving provision.
(4)
Orders and regulations under this Part are to be made by statutory instrument.
(5)
A statutory instrument containing an order or regulations under this Part is
subject to annulment in pursuance of a resolution of either House of
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Parliament, subject to subsection (6).
(6)
A statutory instrument containing an order or regulations listed in subsection
(7) (whether alone or with other provision) may not be made unless a draft of
the instrument has been laid before, and approved by a resolution of, each
House of Parliament.
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(7)
Those orders and regulations are—
(a)
orders under section 8;
(b)
orders under section 16(3);
(c)
regulations under section 17(7);
(d)
regulations under section 18;
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(e)
regulations under section 19;
(f)
regulations under section 21;
(g)
regulations under section 25(3) or (6)(b) or (d);
(h)
regulations under section 26(6)(a) or (8);
(i)
regulations under paragraph 5(8) of Schedule 3;
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(j)
regulations under paragraph 10 of Schedule 4 that modify an Act (as
defined in that Schedule).

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
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Interpretation
(1)
In this Part—
“advocacy” means the exercise of a right of audience before a court,
tribunal or other body;
“civil legal services” has the meaning given in section 7;
5
“civil servant” means an individual employed in the civil service of the
State;
“criminal proceedings” has the meaning given in section 13;
“the Director” means the Director of Legal Aid Casework;
“functions” includes powers and duties;
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“legal aid” has the meaning given in section 1;
“legal proceedings” means proceedings before a court or tribunal;
“legal services” has the meaning given in section 7;
“modify”, in relation to an Act or instrument, includes amend, repeal or
revoke and related terms are to be interpreted accordingly;
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“prescribed” means prescribed by regulations and related terms are to be
interpreted accordingly;
“regulations” means regulations made by the Lord Chancellor;
“remuneration” includes disbursements;
“representation” means representation for the purposes of proceedings
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and includes—
(a)
the advice and assistance which is usually given by a
representative in the steps preliminary or incidental to
proceedings, and
(b)
subject to any time limits which may be prescribed, advice and
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assistance as to any appeal.
(2)
In this Part—
(a)
references to proceedings are to be interpreted in accordance with
section 19(4), and
(b)
references to European Union law are to that law as amended from
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time to time.
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Crown application
This Part binds the Crown.
Part 2
Litigation funding and costs
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Payments for legal services in civil cases
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Conditional fee agreements: success fees
(1)
In section 58 of the Courts and Legal Services Act 1990 (conditional fee
agreements), in subsection (2)—
(a)
omit “and” after paragraph (a), and
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Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
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(b)
after paragraph (b) insert “and
(c)
references to a success fee, in relation to a conditional fee
agreement, are to the amount of the increase.”
(2)
After subsection (4) of that section insert—
“(4A)
The additional conditions are applicable to a conditional fee agreement
5
which—
(a)
provides for a success fee, and
(b)
relates to proceedings of a description specified by order made
by the Lord Chancellor for the purposes of this subsection.
(4B)
The additional conditions are that—
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(a)
the agreement must provide that the success fee is subject to a
maximum limit,
(b)
the maximum limit must be expressed as a percentage of the
descriptions of damages awarded in the proceedings that are
specified in the agreement,
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(c)
that percentage must not exceed the percentage specified by
order made by the Lord Chancellor in relation to the
proceedings or calculated in a manner so specified, and
(d)
those descriptions of damages may only include descriptions of
damages specified by order made by the Lord Chancellor in
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relation to the proceedings.”
(3)
In section 58A of that Act (conditional fee agreements: supplementary), in
subsection (5) after “section 58(4)” insert “, (4A) or (4B)”.
(4)
For subsection (6) of that section substitute—
“(6)
A costs order made in proceedings may not include provision requiring
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the payment by one party of all or part of a success fee payable by
another party under a conditional fee agreement.”
(5)
In section 120(4) of that Act (regulations and orders subject to parliamentary
approval) after “58(4),” insert “(4A) or (4B),”.
(6)
The amendment made by subsection (4) does not apply in relation to a success
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fee payable under a conditional fee agreement entered into before that
subsection comes into force.
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Damages-based agreements
(1)
Section 58AA of the Courts and Legal Services Act 1990 (damages-based
agreements) is amended as follows.
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(2)
In subsection (1) omit “relates to an employment matter and”.
(3)
In subsection (2)—
(a)
after “But” insert “(subject to subsection (9))”, and
(b)
omit “relates to an employment matter and”.
(4)
Omit subsection (3)(b).
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(5)
After subsection (4)(a) insert—
“(aa)
must not relate to proceedings which by virtue of section 58A(1)
and (2) cannot be the subject of an enforceable conditional fee

Legal Aid, Sentencing and Punishment of Offenders Bill
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agreement or to proceedings of a description prescribed by the
Lord Chancellor;”.
(6)
In subsection (4)(b), at the beginning insert “if regulations so provide,”.
(7)
In subsection (4)(d) for “has provided prescribed information” substitute “has
complied with such requirements (if any) as may be prescribed as to the
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provision of information”.
(8)
After subsection (6) insert—
“(6A)
Rules of court may make provision with respect to the assessment of
costs in proceedings where a party in whose favour a costs order is
made has entered into a damages-based agreement in connection with
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the proceedings.”
(9)
After subsection (7) insert—
“(7A)
In this section (and in the definitions of “advocacy services” and
“litigation services” as they apply for the purposes of this section)
“proceedings” includes any sort of proceedings for resolving disputes
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(and not just proceedings in a court), whether commenced or
contemplated.”
(10)
After subsection (8) insert—
“(9)
Where section 57 of the Solicitors Act 1974 (non-contentious business
agreements between solicitor and client) applies to a damages-based
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agreement other than one relating to an employment matter,
subsections (1) and (2) of this section do not make it unenforceable.
(10)
For the purposes of subsection (9) a damages-based agreement relates
to an employment matter if the matter in relation to which the services
are provided is a matter that is, or could become, the subject of
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proceedings before an employment tribunal.”
(11)
In the heading of that section omit “relating to employment matters”.
(12)
The amendments made by this section do not apply in relation to an agreement
entered into before this section comes into force.
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Recovery of insurance premiums by way of costs
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(1)
In the Courts and Legal Services Act 1990, after section 58B insert—
“58C
Recovery of insurance premiums by way of costs
(1)
A costs order made in favour of a party to proceedings who has taken
out a costs insurance policy may not include provision requiring the
payment of an amount in respect of all or part of the premium of the
35
policy, unless such provision is permitted by regulations under
subsection (2).
(2)
The Lord Chancellor may by regulations provide that a costs order may
include provision requiring the payment of such an amount where—
(a)
the order is made in favour of a party to clinical negligence
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proceedings of a prescribed description,
(b)
the party has taken out a costs insurance policy insuring against
the risk of incurring a liability to pay for one or more expert

Legal Aid, Sentencing and Punishment of Offenders Bill
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reports in respect of clinical negligence in connection with the
proceedings (or against that risk and other risks),
(c)
the policy is of a prescribed description,
(d)
the policy states how much of the premium relates to the
liability to pay for an expert report or reports in respect of
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clinical negligence (“the relevant part of the premium”), and
(e)
the amount is to be paid in respect of the relevant part of the
premium.
(3)
Regulations under subsection (2) may include provision about the
amount that may be required to be paid by the costs order, including
10
provision that the amount must not exceed a prescribed maximum
amount.
(4)
The regulations may prescribe a maximum amount, in particular, by
specifying—
(a)
a percentage of the relevant part of the premium;
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(b)
an amount calculated in a prescribed manner.
(5)
In this section—
“clinical negligence” means breach of a duty of care or trespass to
the person committed in the course of the provision of clinical
or medical services (including dental or nursing services);
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“clinical negligence proceedings” means proceedings which
include a claim for damages in respect of clinical negligence;
“costs insurance policy”, in relation to a party to proceedings,
means a policy insuring against the risk of the party incurring a
liability in those proceedings;
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“expert report” means a report by a person qualified to give expert
advice on all or most of the matters that are the subject of the
report;
“proceedings” includes any sort of proceedings for resolving
disputes (and not just proceedings in court), whether
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commenced or contemplated.”
(2)
In the Access to Justice Act 1999, omit section 29 (recovery of insurance
premiums by way of costs).
(3)
The amendments made by this section do not apply in relation to a costs order
made in favour of a party to proceedings who took out a costs insurance policy
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in relation to the proceedings before the day on which this section comes into
force.
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Recovery where body undertakes to meet costs liabilities
(1)
In the Access to Justice Act 1999, omit section 30 (recovery where body
undertakes to meet costs liabilities).
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(2)
The repeal made by subsection (1) does not apply in relation to a costs order
made in favour of a party to proceedings to whom a body gave an undertaking
in respect of the costs of other parties to the proceedings before the day on
which this section comes into force.