Joint Committee on Statutory Instruments Forty-Second Report


Memorandum by the Lord Chancellor's Department


1.  The Lord Chancellor's Department submits this memorandum at the same time as it lays the draft Conditional Fee Agreements Order for approval by resolution of each House.

2.  The Department draws the Committee's attention to the Lord Chancellor's exercise of his power under section 58 of the Courts and Legal Services Act 1990 (c.41). The relevant part of subsection (3) provides that "a conditional fee agreement which relates to specified proceedings shall not be unenforceable etc". Subsection (4) provides: "In this section "specified proceedings" means proceedings of a description specified by order made by the Lord Chancellor for the purposes of subsection (3)". Article 3(1) of the draft Order provides that all proceedings are specified for the purposes of section 58(3). The Department is aware that, in relation to similarly expressed powers, the Committee has previously expressed the view that such a power does not permit the prescription of all possible categories of case (1996-7, 6th Report, HL paper 22, HC paper 29-vi, page 4). The Department nevertheless considers that the proposed exercise of the power is justified on the following grounds.

3.  For the purposes of the subsection the test to be fulfilled is whether or not the proceedings are of a description described by order. Thus they have to be first described and that description specified in an order. The proceedings that can be described can thus logically range from one specific proceeding to all proceedings. If that is correct there can be no objection to the exercise of the power at one end of the spectrum. Under the Interpretation Act the singular includes the plural and hence proceedings of a description can embrace proceedings of all descriptions.

4.  If it is objected that 'all proceedings' is not a description of proceedings, the same cannot be true of a provision on the lines of 'all proceedings except X'. X itself could be any description of proceeding, however minor or insignificant, that the Lord Chancellor chose. It seems to the Department that, if Parliament intended to allow that result, it is extremely unlikely that it intended not to allow full prescription.

5.  Secondly, in any event, Parliament has expressed a clear intention as to exceptions. Section 58(1) excludes from the definition of a conditional fee agreement the categories of case listed in subsection (10) (criminal proceedings and specified family proceedings). On ordinary principles of construction, there would therefore appear to be no ground for holding that the Lord Chancellor had to carve out some further exception from his exercise of the general power.

6.  The Department therefore invites the Committee to accept that the proposed exercise of the power by the Lord Chancellor falls within the scope of the power conferred by section 58.

16th July 1998

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