Legal Aid, Sentencing and Punishment of Offenders Bill (HC Bill 235)

42 Damages-based agreements

(1) Section 58AA of the Courts and Legal Services Act 1990 (damages-based
agreements) is amended as follows.

(2) In subsection (1) omit “relates to an employment matter and”.

(3) 5In subsection (2)—

(a) after “But” insert “(subject to subsection (9))”, and

(b) omit “relates to an employment matter and”.

(4) Omit subsection (3)(b).

(5) After subsection (4)(a) insert—

“(aa) 10must not relate to proceedings which by virtue of section 58A(1)
and (2) cannot be the subject of an enforceable conditional fee
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) 15In subsection (4)(d) for “has provided prescribed information” substitute “has
complied with such requirements (if any) as may be prescribed as to the
provision of information”.

(8) After subsection (6) insert—

“(6A) Rules of court may make provision with respect to the assessment of
20costs in proceedings where a party in whose favour a costs order is
made has entered into a damages-based agreement in connection with
the proceedings.”

(9) After subsection (7) insert—

“(7A) In this section (and in the definitions of “advocacy services” and
25“litigation services” as they apply for the purposes of this section)
“proceedings” includes any sort of proceedings for resolving disputes
(and not just proceedings in a court), whether commenced or
contemplated.”

(10) After subsection (8) insert—

“(9) 30Where section 57 of the Solicitors Act 1974 (non-contentious business
agreements between solicitor and client) applies to a damages-based
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
35to 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
proceedings before an employment tribunal.”

(11) In the heading of that section omit “relating to employment matters”.

(12) In section 120(4) of that Act (regulations and orders subject to parliamentary
40approval) for “58AA” substitute “58AA(4)”.

(13) The amendments made by subsections (1) to (11) do not apply in relation to an
agreement entered into before this section comes into force.

43 Recovery of insurance premiums by way of costs

(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
5out 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
policy, unless such provision is permitted by regulations under
subsection (2).

(2) The Lord Chancellor may by regulations provide that a costs order may
10include provision requiring the payment of such an amount where—

(a) the order is made in favour of a party to clinical negligence
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
15reports 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
20clinical 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
25provision 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;

(b) 30an 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);

• 35“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;

• 40“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
  45commenced 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
in relation to the proceedings before the day on which this section comes into
force.

44 5Recovery 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).

(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
10in respect of the costs of other parties to the proceedings before the day on
which this section comes into force.

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) 15after that subsection insert—

“(2) An order under this section may not require a party to a
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
20section 22ZA.”

(2) After that section insert—

“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
25marriage 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.

(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,
30nullity of marriage or judicial separation.

(3) The court must not make an order under this section unless it is
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) 35For the purposes of subsection (3), the court must be satisfied, in
particular, that—

(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
40granting a charge over any assets recovered in the proceedings.

(5) An order under this section may be made for the purpose of 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 section may—

(a) provide for the payment of all or part of the amount by
5instalments 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.

(8) 10The 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
15applicant 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
20circumstances,

(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

(d) 25providing 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
30mediation.

(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

35After 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—

(a) 40the 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
45the 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,

(e) 5any 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
10respect 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
15the 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.

(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) 20cause undue hardship to the paying party, or

(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) 25An order under subsection (4) must be made by statutory instrument.

(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
3022ZA.”

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) 35Part 8 of Schedule 5 to the Civil Partnership Act 2004 (maintenance pending
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) 40In that paragraph—

(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.

(3) 5In 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
10court 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.

(2) The court may also make such an order or orders in proceedings
15under 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
reasonably be able to obtain appropriate legal services for the
20purposes 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
the services, and

(b) 25the 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
enabling the applicant to obtain legal services of a specified
30description, 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
instalments of specified amounts, and

(b) 35require 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.

(8) The court may at any time in the proceedings vary an order made
40under 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
the applicant pursuant to an order under this section for the
45purposes 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
circumstances,

(b) 5providing 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

(d) 10providing 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
15mediation.

(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

20After paragraph 38A of Schedule 5 to the Civil Partnership Act 2004 insert—

“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
25has 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 the foreseeable future,

(c) the subject matter of the proceedings, including the matters
30in issue in them,

(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
35mediation or otherwise,

(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
40party, and

(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
45expect the applicant or the paying party to take steps to acquire.

(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
purposes of the proceedings.

(4) The Lord Chancellor may by order amend this paragraph by adding
5to, omitting or varying the matters mentioned in sub-paragraphs (1)
to (3).

(5) An order under sub-paragraph (4) must be made by statutory
instrument.

(6) A statutory instrument containing an order under sub-paragraph (4)
10may 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
paragraph 38A.”

50 Dissolution etc proceedings: orders for sale of property

(1) 15Paragraph 10(1)(a) of Schedule 5 to the Civil Partnership Act 2004 (sale of
property orders) is amended as follows.

(2) Omit the “or” at the end of sub-paragraph (i).

(3) After sub-paragraph (ii) insert—

“(iii) an order under paragraph 38A for a payment in
20respect of legal services, or”.

Offers to settle

51 Payment of additional amount to successful claimant

(1) Rules of court may make provision for a court to order a defendant in civil
proceedings to pay an additional amount to a claimant in those proceedings
25where—

(a) the claim is a claim for (and only for) an amount of money,

(b) judgment is given in favour of the claimant,

(c) the judgment in respect of the claim is at least as advantageous as an
offer to settle the claim which the claimant made in accordance with
30rules of court and has not withdrawn in accordance with those rules,
and

(d) any prescribed conditions are satisfied.

(2) Rules made under subsection (1) may include provision as to the assessment of
whether a judgment is at least as advantageous as an offer to settle.

(3) 35In subsection (1) “additional amount” means an amount not exceeding a
prescribed percentage of the amount awarded to the claimant by the court
(excluding any amount awarded in respect of the claimant’s costs).

(4) The Lord Chancellor may by order provide that rules of court may make
provision for a court to order a defendant in civil proceedings to pay an
40amount calculated in a prescribed manner to a claimant in those proceedings
where—

(a) the claim is or includes a non-monetary claim,

(b) judgment is given in favour of the claimant,

(c) the judgment in respect of the claim is at least as advantageous as an
offer to settle the claim which the claimant made in accordance with
rules of court and has not withdrawn in accordance with those rules,
5and

(d) any prescribed conditions are satisfied.

(5) An order under subsection (4) must provide for the amount to be calculated by
reference to one or more of the following—

(a) any costs ordered by the court to be paid to the claimant by the
10defendant in the proceedings;

(b) any amount awarded to the claimant by the court in respect of so much
of the claim as is for an amount of money (excluding any amount
awarded in respect of the claimant’s costs);

(c) the value of any non-monetary benefit awarded to the claimant.

(6) 15An order under subsection (4)—

(a) must provide that rules made under the order may include provision
as to the assessment of whether a judgment is at least as advantageous
as an offer to settle, and

(b) may provide that such rules may make provision as to the calculation
20of the value of a non-monetary benefit awarded to a claimant.

(7) Conditions prescribed under subsection (1)(d) or (4)(d) may, in particular,
include conditions relating to—

(a) the nature of the claim;

(b) the amount of money awarded to the claimant;

(c) 25the value of the non-monetary benefit awarded to the claimant.

(8) Orders under this section are to be made by the Lord Chancellor by statutory
instrument.

(9) A statutory instrument containing an order under this section is subject to
annulment in pursuance of a resolution of either House of Parliament.

(10) 30Rules of court and orders made under this section may make different
provision in relation to different cases.

(11) In this section—

• “civil proceedings” means proceedings to which rules of court made
  under the Civil Procedure Act 1997 apply;

• 35“non-monetary claim” means a claim for a benefit other than an amount
  of money;

• “prescribed” means prescribed by order made by the Lord Chancellor.

Costs in criminal cases

52 Costs in criminal cases

(1) 40Schedule 6 (costs in criminal cases) has effect.

(2) Schedule 7 (costs in criminal cases: service courts) has effect.

Part 3 Sentencing and Punishment of Offenders

CHAPTER 1 Sentencing

General

53 5Court’s duty to consider compensation order

(1) In section 130 of the Powers of Criminal Courts (Sentencing) Act 2000
(compensation orders against convicted persons), after subsection (2) insert—

“(2A) A court must consider making a compensation order in any case where
this section empowers it to do so.”

(2) 10In section 175 of the Armed Forces Act 2006 (service compensation orders),
after subsection (7) insert—

“(7A) The court must consider making a service compensation order in any
case where it has power to do so.”

54 Duty to give reasons for and to explain effect of sentence

(1) 15The Criminal Justice Act 2003 is amended as follows.

(2) For section 174 substitute—

“174 Duty to give reasons for and to explain effect of sentence

(1) A court passing sentence on an offender has the duties in subsections
(2) and (3).

(2) 20The court must state in open court, in ordinary language and in general
terms, the court’s reasons for deciding on the sentence.

(3) The court must explain to the offender in ordinary language—

(a) the effect of the sentence,

(b) the effects of non-compliance with any order that the offender
25is required to comply with and that forms part of the sentence,

(c) any power of the court to vary or review any order that forms
part of the sentence, and

(d) the effects of failure to pay a fine, if the sentence consists of or
includes a fine.

(4) 30The Lord Chancellor may by order—

(a) prescribe cases in which either duty does not apply, and

(b) prescribe cases in which the statement or explanation may be
made in the absence of the offender, or may be provided in
written form.

(5) 35Subsections (6) to (8) are particular duties of the court in complying
with the duty in subsection (2).