Joint Committee on Statutory Instruments Fourteenth Report


Memorandum by the Lord Chancellor's Department


  1. The Lord Chancellor's Department submits this memorandum in response to the request dated 8 March 2000 on the following point:

    Regulation 7(3) requires the resources of an individual whose costs are funded under the Act to have aggregated with them the resources of his/her spouse or other partner. What provision in the Act authorises this?

  2. Section 11(3) of the Act confers a general power to make regulations making provision about costs, and section 11(4)(a) provides, as an example of regulations which may be made under section 11(3), for regulations

    specifying the principles to be applied in determining the amount of any costs which may be awarded against a party for whom services are funded by the Commission as part of the Community Legal Service.

  3. Under section 11(1), the amount of costs to be awarded against an individual receiving funded services is limited to "the amount (if any) which is a reasonable one for [the funded client] to pay having regard to all the circumstances" (emphasis added) including the parties' resources and conduct. We submit that the expression "all the circumstances" here must be read to mean all the relevant circumstances, and that it is the function of section 11(4)(a) to enable regulations to expand on what circumstances are actually relevant. We submit that "all the circumstances" potentially includes the resources of partners, and that it is proper for regulations to provide that partners' resources are to be taken into account in applying section 11(1).

  4. Regulation 7(3) therefore seeks (subject to the exception in regulation 7(4)) to specify, for the purposes of section 11(4)(a), the principle that, in deciding the costs to be awarded against a client in accordance with section 11(1), the court must have regard, not only to the funded client's resources, but also to those belonging to his or her partner, which for these purposes are to be treated as if they were the client's.

  5. There is no provision in the Act which specifically authorises aggregation of resources, but regulation 7(3) falls within the enabling powers for the reasons given above.

13th March 2000

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