|
| |
|
(b) | the applicant is unlikely to be able to obtain the services by |
| |
granting a charge over any assets recovered in the |
| |
| |
(5) | An order under this paragraph may be made for the purpose of |
| |
enabling the applicant to obtain legal services of a specified |
| 5 |
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 |
| |
instalments of specified amounts, and |
| 10 |
(b) | require the instalments to be secured to the satisfaction of the |
| |
| |
(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 |
| 15 |
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 |
| |
the applicant pursuant to an order under this section for the |
| 20 |
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 |
| |
| 25 |
(b) | providing advice and assistance in relation to the |
| |
| |
(c) | providing other advice and assistance in relation to the |
| |
settlement or other resolution of the dispute that is the subject |
| |
| 30 |
(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 |
| 35 |
| |
(11) | In sub-paragraphs (5) and (6) “specified” means specified in the |
| |
| |
54 | Dissolution etc proceedings: matters to be considered by court making legal |
| |
| 40 |
After 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 |
| 45 |
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 the foreseeable future, |
| |
(c) | the subject matter of the proceedings, including the matters |
| |
| 5 |
(d) | whether the paying party is legally represented in the |
| |
| |
(e) | any steps taken by the applicant to avoid all or part of the |
| |
proceedings, whether by proposing or considering |
| |
| 10 |
(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 |
| |
| 15 |
(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. |
| 20 |
(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 |
| |
| |
(a) | cause undue hardship to the paying party, or |
| |
(b) | prevent the paying party from obtaining legal services for the |
| 25 |
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) |
| |
| |
(5) | An order under sub-paragraph (4) must be made by statutory |
| 30 |
| |
(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 |
| 35 |
| |
55 | Dissolution etc proceedings: orders for sale of property |
| |
(1) | Paragraph 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). |
| 40 |
(3) | After sub-paragraph (ii) insert— |
| |
“(iii) | an order under paragraph 38A for a payment in |
| |
respect of legal services, or”. |
| |
|
| |
|
| |
|
| |
56 | 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 |
| |
| 5 |
(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 |
| |
rules of court and has not withdrawn in accordance with those rules, |
| 10 |
| |
(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) | In subsection (1) “additional amount” means an amount not exceeding a |
| 15 |
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 |
| |
amount calculated in a prescribed manner to a claimant in those proceedings |
| 20 |
| |
(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 |
| 25 |
rules of court and has not withdrawn in accordance with those rules, |
| |
| |
(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— |
| 30 |
(a) | any costs ordered by the court to be paid to the claimant by the |
| |
defendant 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); |
| 35 |
(c) | the value of any non-monetary benefit awarded to the claimant. |
| |
(6) | An 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 |
| 40 |
(b) | may provide that such rules may make provision as to the calculation |
| |
of 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; |
| 45 |
(b) | the amount of money awarded to the claimant; |
| |
|
| |
|
| |
|
(c) | the 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 |
| |
| |
(9) | A statutory instrument containing an order under this section is subject to |
| |
annulment in pursuance of a resolution of either House of Parliament. |
| 5 |
(10) | Rules of court and orders made under this section may make different |
| |
provision in relation to different cases. |
| |
| |
“civil proceedings” means proceedings to which rules of court made |
| |
under the Civil Procedure Act 1997 apply; |
| 10 |
“non-monetary claim” means a claim for a benefit other than an amount |
| |
| |
“prescribed” means prescribed by order made by the Lord Chancellor. |
| |
| |
57 | Rules against referral fees |
| 15 |
(1) | A regulated person is in breach of this section if— |
| |
(a) | the regulated person refers prescribed legal business to another person |
| |
and is paid or has been paid for the referral, or |
| |
(b) | prescribed legal business is referred to the regulated person, and the |
| |
regulated person pays or has paid for the referral. |
| 20 |
(2) | A regulated person is also in breach of this section if in providing legal services |
| |
in the course of prescribed legal business the regulated person— |
| |
(a) | arranges for another person to provide services to the client, and |
| |
(b) | is paid or has been paid for making the arrangement. |
| |
(3) | Section 60 defines “regulated person”. |
| 25 |
(4) | “Prescribed legal business” means business that involves the provision of legal |
| |
services to a client, where— |
| |
(a) | the legal services relate to a claim or potential claim for damages for |
| |
personal injury or death, or |
| |
(b) | the business is of a description specified in regulations made by the |
| 30 |
| |
(5) | There is a referral of prescribed legal business if— |
| |
(a) | a person provides information to another, |
| |
(b) | it is information that a provider of legal services would need to make |
| |
an offer to the client to provide relevant services, and |
| 35 |
(c) | the person providing the information is not the client; |
| |
| and “relevant services” means any of the legal services that the business |
| |
| |
(6) | “Legal services” means services provided by a person which consist of or |
| |
include legal activities (within the meaning of the Legal Services Act 2007) |
| 40 |
carried on by or on behalf of that person; and a provider of legal services is a |
| |
person authorised to carry on a reserved legal activity within the meaning of |
| |
| |
|
| |
|
| |
|
| |
(a) | where subsection (4)(a) applies, means the person who makes or would |
| |
| |
(b) | where subsection (4)(b) applies, has the meaning given by the |
| |
| 5 |
(8) | Payment includes any form of consideration (but does not include the |
| |
provision of hospitality that is reasonable in the circumstances). |
| |
58 | Effect of the rules against referral fees |
| |
(1) | The relevant regulator must ensure that it has appropriate arrangements for |
| |
monitoring and enforcing the restrictions imposed on regulated persons by |
| 10 |
| |
(2) | A regulator may make rules for the purposes of subsection (1). |
| |
(3) | The rules may in particular provide for the relevant regulator to exercise in |
| |
relation to anything done in breach of that section any powers (subject to |
| |
subsections (5) and (6)) that the regulator would have in relation to anything |
| 15 |
done by the regulated person in breach of another restriction. |
| |
(4) | Where the relevant regulator is the Financial Services Authority, section 59 |
| |
applies instead of subsections (1) to (3) (and (7) to (9)). |
| |
(5) | A breach of section 57— |
| |
(a) | does not make a person guilty of an offence, and |
| 20 |
(b) | does not give rise to a right of action for breach of statutory duty. |
| |
(6) | A breach of section 57 does not make anything void or unenforceable, but a |
| |
contract to make or pay for a referral or arrangement in breach of that section |
| |
| |
(7) | Subsection (8) applies in a case where— |
| 25 |
(a) | a referral of prescribed legal business has been made by or to a |
| |
| |
(b) | a regulated person has made an arrangement as mentioned in section |
| |
| |
| and it appears to the regulator that a payment made to or by the regulated |
| 30 |
person may be a payment for the referral or for making the arrangement (a |
| |
| |
(8) | Rules under subsection (2) may provide for the payment to be treated as a |
| |
referral fee unless the regulated person shows that the payment was made— |
| |
(a) | as consideration for the provision of services, or |
| 35 |
| |
| and not as a referral fee. |
| |
(9) | For the purposes of provision made by virtue of subsection (8) a payment that |
| |
would otherwise be regarded as consideration for the provision of services of |
| |
any description may be treated as a referral fee if it exceeds the amount |
| 40 |
specified in relation to services of that description in regulations made by the |
| |
| |
|
| |
|