Legal Aid, Sentencing and Punishment of Offenders Bill

Session 2010 - 12
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Other Bills before Parliament

Legal Aid, Sentencing and Punishment of Offenders Bill

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
32

45
Divorce etc proceedings: orders for payment in respect of legal services
(1)
In section 22 of the Matrimonial Causes Act 1973 (maintenance pending suit)—
(a)
number the existing provision subsection (1), and
(b)
after that subsection insert—
“(2)
An order under this section may not require a party to a
5
marriage to pay to the other party any amount in respect of legal
services for the purposes of the proceedings.
(3)
In subsection (2) “legal services” has the same meaning as in
section 22ZA.”
(2)
After that section insert—
10
“22ZA
Orders for payment in respect of legal services
(1)
In proceedings for divorce, nullity of marriage or judicial separation,
the court may make an order or orders requiring one party to the
marriage to pay to the other (“the applicant”) an amount for the
purpose of enabling the applicant to obtain legal services for the
15
purposes of the proceedings.
(2)
The court may also make such an order or orders in proceedings under
this Part for financial relief in connection with proceedings for divorce,
nullity of marriage or judicial separation.
(3)
The court must not make an order under this section unless it is
20
satisfied that, without the amount, the applicant would not reasonably
be able to obtain appropriate legal services for the purposes of the
proceedings or any part of the proceedings.
(4)
For the purposes of subsection (3), the court must be satisfied, in
particular, that—
25
(a)
the applicant is not reasonably able to secure a loan to pay for
the services, and
(b)
the applicant is unlikely to be able to obtain the services by
granting a charge over any assets recovered in the proceedings.
(5)
An order under this section may be made for the purpose of enabling
30
the applicant to obtain legal services of a specified description,
including legal services provided in a specified period or for the
purposes of a specified part of the proceedings.
(6)
An order under this section may—
(a)
provide for the payment of all or part of the amount by
35
instalments of specified amounts, and
(b)
require the instalments to be secured to the satisfaction of the
court.
(7)
An order under this section may direct that payment of all or part of the
amount is to be deferred.
40
(8)
The court may at any time in the proceedings vary an order made
under this section if it considers that there has been a material change
of circumstances since the order was made.
(9)
For the purposes of the assessment of costs in the proceedings, the
applicant’s costs are to be treated as reduced by any amount paid to the
45

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
33

applicant pursuant to an order under this section for the purposes of
those proceedings.
(10)
In this section “legal services”, in relation to proceedings, means the
following types of services—
(a)
providing advice as to how the law applies in the particular
5
circumstances,
(b)
providing advice and assistance in relation to the proceedings,
(c)
providing other advice and assistance in relation to the
settlement or other resolution of the dispute that is the subject
of the proceedings, and
10
(d)
providing advice and assistance in relation to the enforcement
of decisions in the proceedings or as part of the settlement or
resolution of the dispute,

and they include, in particular, advice and assistance in the form of
representation and any form of dispute resolution, including
15
mediation.
(11)
In subsections (5) and (6) “specified” means specified in the order
concerned.”
46
Divorce etc proceedings: matters to be considered by court making legal
services order
20
After section 22ZA of the Matrimonial Causes Act 1973 insert—
“22ZB
Matters to which court is to have regard in deciding how to exercise
power under section 22ZA
(1)
When considering whether to make or vary an order under section
22ZA, the court must have regard to—
25
(a)
the income, earning capacity, property and other financial
resources which each of the applicant and the paying party has
or is likely to have in the foreseeable future,
(b)
the financial needs, obligations and responsibilities which each
of the applicant and the paying party has or is likely to have in
30
the foreseeable future,
(c)
the subject matter of the proceedings, including the matters in
issue in them,
(d)
whether the paying party is legally represented in the
proceedings,
35
(e)
any steps taken by the applicant to avoid all or part of the
proceedings, whether by proposing or considering mediation
or otherwise,
(f)
the applicant’s conduct in relation to the proceedings,
(g)
any amount owed by the applicant to the paying party in
40
respect of costs in the proceedings or other proceedings to
which both the applicant and the paying party are or were
party, and
(h)
the effect of the order or variation on the paying party.
(2)
In subsection (1)(a) “earning capacity”, in relation to the applicant or
45
the paying party, includes any increase in earning capacity which, in

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
34

the opinion of the court, it would be reasonable to expect the applicant
or the paying party to take steps to acquire.
(3)
For the purposes of subsection (1)(h), the court must have regard, in
particular, to whether the making or variation of the order is likely to—
(a)
cause undue hardship to the paying party, or
5
(b)
prevent the paying party from obtaining legal services for the
purposes of the proceedings.
(4)
The Lord Chancellor may by order amend this section by adding to,
omitting or varying the matters mentioned in subsections (1) to (3).
(5)
An order under subsection (4) must be made by statutory instrument.
10
(6)
A statutory instrument containing an order under subsection (4) may
not be made unless a draft of the instrument has been laid before, and
approved by a resolution of, each House of Parliament.
(7)
In this section “legal services” has the same meaning as in section
22ZA.”
15
47
Divorce etc proceedings: orders for sale of property
In section 24A(1) of the Matrimonial Causes Act 1973 (orders for sale of
property), after “makes” insert “an order under section 22ZA or makes”.
48
Dissolution etc proceedings: orders for payment in respect of legal services
(1)
Part 8 of Schedule 5 to the Civil Partnership Act 2004 (maintenance pending
20
outcome of dissolution etc proceedings) is amended as follows.
(2)
In the heading of that Part after “Maintenance” insert “and other payments”.
(3)
Before paragraph 38 insert—
“Maintenance orders”.
(4)
In that paragraph—
25
(a)
number the existing provision sub-paragraph (1), and
(b)
after that sub-paragraph insert—
“(2)
An order under this paragraph may not require one civil
partner to pay to the other any amount in respect of legal
services for the purposes of the proceedings.
30
(3)
In sub-paragraph (2) “legal services” has the same meaning as
in paragraph 38A.”
(5)
After that paragraph insert—
“Orders in respect of legal services
38A   (1)
In proceedings for a dissolution, nullity or separation order, the
35
court may make an order or orders requiring one civil partner to pay
to the other (“the applicant”) an amount for the purpose of enabling
the applicant to obtain legal services for the purposes of the
proceedings.

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
35

      (2)
The court may also make such an order or orders in proceedings
under this Schedule for financial relief in connection with
proceedings for a dissolution, nullity or separation order.
      (3)
The court must not make an order under this paragraph unless it is
satisfied that, without the amount, the applicant would not
5
reasonably be able to obtain appropriate legal services for the
purposes of the proceedings or any part of the proceedings.
      (4)
For the purposes of sub-paragraph (3), the court must be satisfied, in
particular, that—
(a)
the applicant is not reasonably able to secure a loan to pay for
10
the services, and
(b)
the applicant is unlikely to be able to obtain the services by
granting a charge over any assets recovered in the
proceedings.
      (5)
An order under this paragraph may be made for the purpose of
15
enabling the applicant to obtain legal services of a specified
description, including legal services provided in a specified period
or for the purposes of a specified part of the proceedings.
      (6)
An order under this paragraph may—
(a)
provide for the payment of all or part of the amount by
20
instalments of specified amounts, and
(b)
require the instalments to be secured to the satisfaction of the
court.
      (7)
An order under this paragraph may direct that payment of all or part
of the amount is to be deferred.
25
      (8)
The court may at any time in the proceedings vary an order made
under this paragraph if it considers that there has been a material
change of circumstances since the order was made.
      (9)
For the purposes of the assessment of costs in the proceedings, the
applicant’s costs are to be treated as reduced by any amount paid to
30
the applicant pursuant to an order under this section for the
purposes of those proceedings.
     (10)
In this paragraph “legal services”, in relation to proceedings, means
the following types of services—
(a)
providing advice as to how the law applies in the particular
35
circumstances,
(b)
providing advice and assistance in relation to the
proceedings,
(c)
providing other advice and assistance in relation to the
settlement or other resolution of the dispute that is the subject
40
of the proceedings, and
(d)
providing advice and assistance in relation to the
enforcement of decisions in the proceedings or as part of the
settlement or resolution of the dispute,

and they include, in particular, advice and assistance in the form of
45
representation and any form of dispute resolution, including
mediation.

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 2 — Litigation funding and costs
36

     (11)
In sub-paragraphs (5) and (6) “specified” means specified in the
order concerned.”
49
Dissolution etc proceedings: matters to be considered by court making legal
services order
After paragraph 38A of Schedule 5 to the Civil Partnership Act 2004 insert—
5
“38B  (1)
When considering whether to make or vary an order under
paragraph 38A, the court must have regard to—
(a)
the income, earning capacity, property and other financial
resources which each of the applicant and the paying party
has or is likely to have in the foreseeable future,
10
(b)
the financial needs, obligations and responsibilities which
each of the applicant and the paying party has or is likely to
have in the foreseeable future,
(c)
the subject matter of the proceedings, including the matters
in issue in them,
15
(d)
whether the paying party is legally represented in the
proceedings,
(e)
any steps taken by the applicant to avoid all or part of the
proceedings, whether by proposing or considering
mediation or otherwise,
20
(f)
the applicant’s conduct in relation to the proceedings,
(g)
any amount owed by the applicant to the paying party in
respect of costs in the proceedings or other proceedings to
which both the applicant and the paying party are or were
party, and
25
(h)
the effect of the order or variation on the paying party.
      (2)
In sub-paragraph (1)(a) “earning capacity”, in relation to the
applicant or the paying party, includes any increase in earning
capacity which, in the opinion of the court, it would be reasonable to
expect the applicant or the paying party to take steps to acquire.
30
      (3)
For the purposes of sub-paragraph (1)(h), the court must have
regard, in particular, to whether the making or variation of the order
is likely to—
(a)
cause undue hardship to the paying party, or
(b)
prevent the paying party from obtaining legal services for the
35
purposes of the proceedings.
      (4)
The Lord Chancellor may by order amend this paragraph by adding
to, omitting or varying the matters mentioned in sub-paragraphs (1)
to (3).
      (5)
An order under sub-paragraph (4) must be made by statutory
40
instrument.
      (6)
A statutory instrument containing an order under sub-paragraph (4)
may not be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament.
      (7)
In this paragraph “legal services” has the same meaning as in
45
paragraph 38A.”