Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill


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

39

 

(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

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

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

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

circumstances,

25

(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

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

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mediation.

     (11)  

In sub-paragraphs (5) and (6) “specified” means specified in the

order concerned.”

54      

Dissolution etc proceedings: matters to be considered by court making legal

services order

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,

 
 

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

40

 

(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,

5

(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,

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

party, and

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

is likely to—

(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)

to (3).

      (5)  

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

30

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

35

paragraph 38A.”

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”.

 
 

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

41

 

Offers to settle

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

where—

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

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)   

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

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

25

rules of court and has not withdrawn in accordance with those rules,

and

(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;

 
 

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

42

 

(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

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.

5

(10)   

Rules 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;

10

“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.

Referral fees

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

Lord Chancellor.

(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

involves.

(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

that Act.

 
 

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

43

 

(7)   

“Client”—

(a)   

where subsection (4)(a) applies, means the person who makes or would

made the claim;

(b)   

where subsection (4)(b) applies, has the meaning given by the

regulations.

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

section 57.

(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

is unenforceable.

(7)   

Subsection (8) applies in a case where—

25

(a)   

a referral of prescribed legal business has been made by or to a

regulated person, or

(b)   

a regulated person has made an arrangement as mentioned in section

57(2)(a),

   

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

“referral fee”).

(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

(b)   

for another reason,

   

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

Lord Chancellor.

 
 

 
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Revised 22 March 2012