House of Lords Amendments - Access to Justice Bill [H.L.]

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Session 1998-99
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Amendments to the Access to Justice Bill [H.L.]

Access to Justice Bill [H.L.] -
Amendments to be debated in the House of Lords
Here you can browse the Amendments to the Access to Justice Bill [H.L.] to be moved on Report in the House of Lords.

Before Clause 1

BY THE LORD KINGSLAND
THE LORD GOODHART

     Insert the following new Clause--

("Principles to be applied

    .--(1)  Every person exercising functions in connection with this Part must act, so far as possible, in a way which is compatible with the objectives set out in subsection (2).

    (2)  The objectives are--
(a)  that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means;

(b)  that such access is not to be impaired on account of disability (within the meaning of the Disability Discrimination Act 1995) or the place in England and Wales where any legal services are sought;

(c)  that legal services and facilities of high quality be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly and with the parties placed on an equal footing.")
Principles applicable to
Part I.

Clause 1

BY THE LORD PHILLIPS OF SUDBURY
THE LORD GOODHART

     Page 2, line 3, at end insert--

    ("(  )  The Commission shall include at least two solicitors, one barrister and one representative of consumers each of whom shall have substantial experience of the provision of services which the Commission can fund, appointed after consultation with the Law Society, the General Council of the Bar, and organisations representing consumers, respectively.")

Schedule 1

BY THE LORD GOODHART
THE LORD PHILLIPS OF SUDBURY

     Page 53, line 21, after ("out") insert ("the results of its assessment of need under section 5(4) and")

Clause 6

BY THE LORD KINGSLAND
THE LORD GOODHART

     Page 4, line 26, at end insert--

    ("(5A)  The Lord Chancellor shall by order make provision about the payments which may be made by the Commission in respect of advocacy provided by non-contracted private practitioners in cases funded as part of the Community Legal Service; and such provision shall require that the remuneration for such advocacy in each case be quantified and paid separately from other funded services.

    (5B)  For the purposes of subsection (5A), representation is provided by a non-contracted private practitioner if it is provided, otherwise than pursuant to a contract entered into by the Commission, by a person or body which is neither--
(a)  a person or body in receipt of grants of loans made by the Commission as part of the Community Legal Service, nor

(b)  the Commission itself or a body established or maintained by the Commission.")

Clause 7

BY THE LORD GOODHART
THE LORD THOMAS OF GRESFORD

     Page 4, line 29, leave out ("directions given") and insert ("order made")

BY THE LORD PHILLIPS OF SUDBURY
THE LORD GOODHART
THE LORD ACKNER
THE LORD ARCHER OF SANDWELL

     Page 4, line 30 at end insert--

    ("(  )  In funding services as part of the Community Legal Service, the Commission shall aim to obtain the best long term value for money on the basis that all persons and bodies applying for funding who meet the standards set by the Commission shall be able to provide services for individuals under this Part of this Act on terms as to remuneration and otherwise, set by contract or by regulations.")

BY THE LORD KINGSLAND
THE LORD GOODHART

     Page 5, line 8, after ("not") insert ("(except as provided by subsection (6A))")

BY THE LORD KINGSLAND
THE LORD GOODHART
THE LORD PHILLIPS OF SUDBURY

     Page 5, line 11, at end insert--

    ("(6A)  Services consisting of the provision of help in bringing or defending particular proceedings for negligence (other than clinical negligence) where the alleged damage is to the person are not prevented by paragraph 3(a) of Schedule 2 from being funded as part of the Community Legal Service unless the Commission is satisfied that adequate arrangements can be made in that case for the services in question to be funded in some other way.")

Schedule 2

BY THE LORD GOODHART
THE LORD THOMAS OF GRESFORD

     Page 55, line 28, at end insert--
("(  )  proceedings before the employment tribunals")

     Page 55, line 28, at end insert--
("(  )  proceedings before the immigration tribunals")

After Clause 11

BY THE LORD GOODHART
THE LORD LESTER OF HERNE HILL

     Insert the following new Clause--

    ("  .--(1)  The Commission shall establish and maintain a fund known as the Public Interest Litigation Fund.

    (2)  The Lord Chancellor--
(a)  shall pay to the Commission the sums which he determines as appropriate for the funding of services by the Commission out of the Public Interest Litigation Fund, and

(b)  may determine the manner in which and times at which the sums are to be paid to the Commission and may impose conditions on the payment of the sums.
    (3)  The purpose of the Public Interest Litigation Fund shall be to finance the provision of services of any of the kinds specified in section 5(1) to a person who is or may become a party to legal proceedings if the conditions in subsection (4) are satisfied and the Commission thinks it appropriate to finance the provision of those services.

    (4)  The conditions referred to in subsection (3) are--
(a)  that the proceedings give rise to an issue of substantial public importance,

(b)  that the person seeking the services is not entitled to have those services funded out of the Community Legal Services Fund or as part of the Criminal Defence Service, and

(c)  that neither the person seeking the services nor any other persons having a similar interest in the proceedings can reasonably be expected to pay for such services out of his own financial resources or resources which may be made available for that purpose from another source.
    (5)  Regulations may be made for the implementation of this section.

    (6)  In this section "proceedings" include prospective proceedings and any step in proceedings.") Public Interest Litigation Fund.

BY THE LORD GOODHART
THE LORD PHILLIPS OF SUDBURY

     Insert the following new Clause--

    ("  .--(1)  In determining for the purposes of sections 10 and 11 the financial resources of an individual, regulations shall provide that the first £100,000 (or such larger amount as may be specified) of the value of the beneficial interest of the individual in the equity of a dwelling house which is his only or principal evidence shall be disregarded.

    (2)  For the purposes of this section "equity value" means the market value of the dwelling house after deducting the debts not exceeding £100,000 (or such larger amount as may be specified) secured on it by a morgage or charge.

    (3)  Regulations may provide that the amount to be disregarded under subsection (1) may be reduced in specified circumstances where the equity exceeds £100,000 (or such larger amount as may be specified) and the individual does not have the sole beneficial interest in the equity.") Determination of financial resources for contributions and costs.

     Insert the following new Clause--

    ("  .--(1)  The Commission shall conduct research into the likely demand for and financial viability of conditionally funded fee agreements (as defined in section 58(6) of the Courts and Legal Services Act 1990).

    (2)  For the purposes of such research the Lord Chancellor may by order authorise the Commission to enter into conditionally funded fee agreements as the funder subject to such restrictions as may be specified in the order.

    (3)  The Lord Chancellor shall pay to the Commission such sums as he thinks appropriate to enable the Commission to conduct such research.

    (4)  The Commission shall submit a report on the results of its research under this section to the Lord Chancellor and shall publish its report.

    (5)  The Lord Chancellor may, after receiving the report, by order authorise the Commission to enter into conditionally funded fee agreements as the funder to any extent specified in the order.

    (6)  The Lord Chancellor shall pay to the Commission such sums by way of loan or grant as he thinks appropriate for meeting any liabilities incurred by the Commission in acting under an authority given under subsection (5) and may guarantee discharge by the Commission of any such liabilities.") Conditionally funded fee agreements.

Clause 13

BY THE LORD THOMAS OF GRESFORD
THE LORD GOODHART

     Page 9, line 27, leave out from beginning to ("or")

     Page 9, line 29, at end insert ("except itself providing advice and assistance")

Clause 14

BY THE LORD THOMAS OF GRESFORD
THE LORD GOODHART

     Page 10, line 9, leave out from beginning to ("or")

BY THE LORD KINGSLAND

     Page 10, line 9, after ("representation") insert ("for the purposes of a criminal investigation or of criminal proceedings in a magistrates' court,")

BY THE LORD THOMAS OF GRESFORD
THE LORD GOODHART

     Page 10, line 11, at end insert ("except itself providing representation")

BY THE LORD KINGSLAND
THE LORD GOODHART
[As an amendment to the third amendment to Clause 14
as printed on sheet HL Bill 16(b)]

     Line 5, after ("practitioners") insert ("(which provision shall require that the remuneration for such representation in each case be quantified and paid separately from other funded services)")

BY THE LORD THOMAS OF GRESFORD
THE LORD GOODHART
[As an amendment to the eighth amendment to Clause 14,
as printed on HL Sheet 16(b)]

     Line 3, at end insert ("or may not select a non-contracted private practitioner who is accredited to provide services of the kind required.")

Clause 23

BY THE LORD KINGSLAND
THE LORD GOODHART
[As an amendment to the second amendment to Clause 23
as printed on sheet HL Bill 16(b)]

     Line 13, after ("section") insert ("6(5A)")

Clause 27

BY THE LORD HUNT OF WIRRAL

     Page 15, line 45, after ("agreement") insert--
("(  )  it must be used in substitution for before the event legal expenses insurance cover;")

BY THE LORD KINGSLAND
THE LORD PHILLIPS OF SUDBURY
THE LORD GOODHART

     Page 16, line 14, at end insert ("and
(d)  the amount of the increase must not be calculated (expressly or otherwise) by reference to the amount or value of any money, property or other benefit recovered or preserved in the proceedings.")

BY THE LORD GOODHART
THE LORD PHILLIPS OF SUDBURY

     Page 16, line 14, at end insert--

    ("(5)  The Lord Chancellor may by order direct that, subject to any modification specified in the order, this section shall apply to conditionally funded fee agreements as if they were conditional fee agreements provided for an enhanced fee.

    (6)  For the purposes of this section and section 58A a conditionally funded fee agreement is an agreement between a person providing advocacy or litigation services, his client and another person (in this section referred to as "the funder") which provides for--
(a)  the costs of the client of the proceedings so far as they are not payable by any other party to the proceedings and any costs ordered or agreed to be paid by him to any other party to the proceedings to be paid by the funder;

(b)  any costs of the proceedings payable to the client by any other party to the proceedings to be paid to the funder; and

(c)  a sum calculated by reference to the fees of the person providing the services to be paid by the client to the funder in specified circumstances.
    (7)  A conditionally funded fee agreement may only be entered into by a person as the funder if that person has been authorised for that purpose by order made by the Lord Chancellor.")

     Page 17, line 9, after ("subject") insert ("to subsections (6A) and (6B) and")

BY THE LORD HUNT OF WIRRAL

     Page 17, line 12, at end insert ("provided that no such enhanced fees shall be recoverable unless proper notice has been given as prescribed by Rules of court")

BY THE LORD GOODHART
THE LORD PHILLIPS OF SUDBURY

     Page 17, line 12, at end insert--

    ("(6A)  An order may be made under subsection (6) only if the court thinks it just in all the circumstances to do so.

    (6B)  In deciding whether it is just to make an order under subsection (6) the court may consider--
(a)  any hardship which would be caused to the successful party if the order is not made;

(b)  whether it would have been reasonably possible for the successful party to contest the proceedings without entering into a conditional fee agreement; and

(c)  the extent (if any) to which the costs of the successful party have been increased by the unreasonable behaviour of the party against whom the costs order has been made in the conduct of the proceedings.
    (6C)  In this section, "the successful party" means a party in whose favour a costs order is made.")

BY THE LORD KINGSLAND
THE LORD PHILLIPS OF SUDBURY

     Page 17, line 16, at end insert--

    ("(8)  A conditional fee agreement which relates to advocacy or litigation services of a solicitor and which does not satisfy all of the conditions applicable to it by virtue of section 58 is unenforceable notwithstanding any provision of, or made under, the Solicitors Act 1974."")

© Parliamentary copyright 1999
Prepared 10 February 1999

	Before Clause 1
	BY THE LORD KINGSLAND THE LORD GOODHART
	Insert the following new Clause--
	("Principles to be applied
	.--(1) Every person exercising functions in connection with this Part must act, so far as possible, in a way which is compatible with the objectives set out in subsection (2). (2) The objectives are-- (a) that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means; (b) that such access is not to be impaired on account of disability (within the meaning of the Disability Discrimination Act 1995) or the place in England and Wales where any legal services are sought; (c) that legal services and facilities of high quality be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly and with the parties placed on an equal footing.")		Principles applicable to Part I.
	Clause 1
	BY THE LORD PHILLIPS OF SUDBURY THE LORD GOODHART
	Page 2, line 3, at end insert-- ("( ) The Commission shall include at least two solicitors, one barrister and one representative of consumers each of whom shall have substantial experience of the provision of services which the Commission can fund, appointed after consultation with the Law Society, the General Council of the Bar, and organisations representing consumers, respectively.")
	Schedule 1
	BY THE LORD GOODHART THE LORD PHILLIPS OF SUDBURY
	Page 53, line 21, after ("out") insert ("the results of its assessment of need under section 5(4) and")
	Clause 6
	BY THE LORD KINGSLAND THE LORD GOODHART
	Page 4, line 26, at end insert-- ("(5A) The Lord Chancellor shall by order make provision about the payments which may be made by the Commission in respect of advocacy provided by non-contracted private practitioners in cases funded as part of the Community Legal Service; and such provision shall require that the remuneration for such advocacy in each case be quantified and paid separately from other funded services. (5B) For the purposes of subsection (5A), representation is provided by a non-contracted private practitioner if it is provided, otherwise than pursuant to a contract entered into by the Commission, by a person or body which is neither-- (a) a person or body in receipt of grants of loans made by the Commission as part of the Community Legal Service, nor (b) the Commission itself or a body established or maintained by the Commission.")
	Clause 7
	BY THE LORD GOODHART THE LORD THOMAS OF GRESFORD
	Page 4, line 29, leave out ("directions given") and insert ("order made")
	BY THE LORD PHILLIPS OF SUDBURY THE LORD GOODHART THE LORD ACKNER THE LORD ARCHER OF SANDWELL
	Page 4, line 30 at end insert-- ("( ) In funding services as part of the Community Legal Service, the Commission shall aim to obtain the best long term value for money on the basis that all persons and bodies applying for funding who meet the standards set by the Commission shall be able to provide services for individuals under this Part of this Act on terms as to remuneration and otherwise, set by contract or by regulations.")
	BY THE LORD KINGSLAND THE LORD GOODHART
	Page 5, line 8, after ("not") insert ("(except as provided by subsection (6A))")
	BY THE LORD KINGSLAND THE LORD GOODHART THE LORD PHILLIPS OF SUDBURY
	Page 5, line 11, at end insert-- ("(6A) Services consisting of the provision of help in bringing or defending particular proceedings for negligence (other than clinical negligence) where the alleged damage is to the person are not prevented by paragraph 3(a) of Schedule 2 from being funded as part of the Community Legal Service unless the Commission is satisfied that adequate arrangements can be made in that case for the services in question to be funded in some other way.")
	Schedule 2
	BY THE LORD GOODHART THE LORD THOMAS OF GRESFORD
	Page 55, line 28, at end insert-- ("( ) proceedings before the employment tribunals")
	Page 55, line 28, at end insert-- ("( ) proceedings before the immigration tribunals")
	After Clause 11
	BY THE LORD GOODHART THE LORD LESTER OF HERNE HILL
	Insert the following new Clause--
	(" .--(1) The Commission shall establish and maintain a fund known as the Public Interest Litigation Fund. (2) The Lord Chancellor-- (a) shall pay to the Commission the sums which he determines as appropriate for the funding of services by the Commission out of the Public Interest Litigation Fund, and (b) may determine the manner in which and times at which the sums are to be paid to the Commission and may impose conditions on the payment of the sums. (3) The purpose of the Public Interest Litigation Fund shall be to finance the provision of services of any of the kinds specified in section 5(1) to a person who is or may become a party to legal proceedings if the conditions in subsection (4) are satisfied and the Commission thinks it appropriate to finance the provision of those services. (4) The conditions referred to in subsection (3) are-- (a) that the proceedings give rise to an issue of substantial public importance, (b) that the person seeking the services is not entitled to have those services funded out of the Community Legal Services Fund or as part of the Criminal Defence Service, and (c) that neither the person seeking the services nor any other persons having a similar interest in the proceedings can reasonably be expected to pay for such services out of his own financial resources or resources which may be made available for that purpose from another source. (5) Regulations may be made for the implementation of this section. (6) In this section "proceedings" include prospective proceedings and any step in proceedings.")		Public Interest Litigation Fund.
	BY THE LORD GOODHART THE LORD PHILLIPS OF SUDBURY
	Insert the following new Clause--
	(" .--(1) In determining for the purposes of sections 10 and 11 the financial resources of an individual, regulations shall provide that the first £100,000 (or such larger amount as may be specified) of the value of the beneficial interest of the individual in the equity of a dwelling house which is his only or principal evidence shall be disregarded. (2) For the purposes of this section "equity value" means the market value of the dwelling house after deducting the debts not exceeding £100,000 (or such larger amount as may be specified) secured on it by a morgage or charge. (3) Regulations may provide that the amount to be disregarded under subsection (1) may be reduced in specified circumstances where the equity exceeds £100,000 (or such larger amount as may be specified) and the individual does not have the sole beneficial interest in the equity.")		Determination of financial resources for contributions and costs.
	Insert the following new Clause--
	(" .--(1) The Commission shall conduct research into the likely demand for and financial viability of conditionally funded fee agreements (as defined in section 58(6) of the Courts and Legal Services Act 1990). (2) For the purposes of such research the Lord Chancellor may by order authorise the Commission to enter into conditionally funded fee agreements as the funder subject to such restrictions as may be specified in the order. (3) The Lord Chancellor shall pay to the Commission such sums as he thinks appropriate to enable the Commission to conduct such research. (4) The Commission shall submit a report on the results of its research under this section to the Lord Chancellor and shall publish its report. (5) The Lord Chancellor may, after receiving the report, by order authorise the Commission to enter into conditionally funded fee agreements as the funder to any extent specified in the order. (6) The Lord Chancellor shall pay to the Commission such sums by way of loan or grant as he thinks appropriate for meeting any liabilities incurred by the Commission in acting under an authority given under subsection (5) and may guarantee discharge by the Commission of any such liabilities.")		Conditionally funded fee agreements.
	Clause 13
	BY THE LORD THOMAS OF GRESFORD THE LORD GOODHART
	Page 9, line 27, leave out from beginning to ("or")
	Page 9, line 29, at end insert ("except itself providing advice and assistance")
	Clause 14
	BY THE LORD THOMAS OF GRESFORD THE LORD GOODHART
	Page 10, line 9, leave out from beginning to ("or")
	BY THE LORD KINGSLAND
	Page 10, line 9, after ("representation") insert ("for the purposes of a criminal investigation or of criminal proceedings in a magistrates' court,")
	BY THE LORD THOMAS OF GRESFORD THE LORD GOODHART
	Page 10, line 11, at end insert ("except itself providing representation")
	BY THE LORD KINGSLAND THE LORD GOODHART [As an amendment to the third amendment to Clause 14 as printed on sheet HL Bill 16(b)]
	Line 5, after ("practitioners") insert ("(which provision shall require that the remuneration for such representation in each case be quantified and paid separately from other funded services)")
	BY THE LORD THOMAS OF GRESFORD THE LORD GOODHART [As an amendment to the eighth amendment to Clause 14, as printed on HL Sheet 16(b)]
	Line 3, at end insert ("or may not select a non-contracted private practitioner who is accredited to provide services of the kind required.")
	Clause 23
	BY THE LORD KINGSLAND THE LORD GOODHART [As an amendment to the second amendment to Clause 23 as printed on sheet HL Bill 16(b)]
	Line 13, after ("section") insert ("6(5A)")
	Clause 27
	BY THE LORD HUNT OF WIRRAL
	Page 15, line 45, after ("agreement") insert-- ("( ) it must be used in substitution for before the event legal expenses insurance cover;")
	BY THE LORD KINGSLAND THE LORD PHILLIPS OF SUDBURY THE LORD GOODHART
	Page 16, line 14, at end insert ("and (d) the amount of the increase must not be calculated (expressly or otherwise) by reference to the amount or value of any money, property or other benefit recovered or preserved in the proceedings.")
	BY THE LORD GOODHART THE LORD PHILLIPS OF SUDBURY
	Page 16, line 14, at end insert-- ("(5) The Lord Chancellor may by order direct that, subject to any modification specified in the order, this section shall apply to conditionally funded fee agreements as if they were conditional fee agreements provided for an enhanced fee. (6) For the purposes of this section and section 58A a conditionally funded fee agreement is an agreement between a person providing advocacy or litigation services, his client and another person (in this section referred to as "the funder") which provides for-- (a) the costs of the client of the proceedings so far as they are not payable by any other party to the proceedings and any costs ordered or agreed to be paid by him to any other party to the proceedings to be paid by the funder; (b) any costs of the proceedings payable to the client by any other party to the proceedings to be paid to the funder; and (c) a sum calculated by reference to the fees of the person providing the services to be paid by the client to the funder in specified circumstances. (7) A conditionally funded fee agreement may only be entered into by a person as the funder if that person has been authorised for that purpose by order made by the Lord Chancellor.")
	Page 17, line 9, after ("subject") insert ("to subsections (6A) and (6B) and")
	BY THE LORD HUNT OF WIRRAL
	Page 17, line 12, at end insert ("provided that no such enhanced fees shall be recoverable unless proper notice has been given as prescribed by Rules of court")
	BY THE LORD GOODHART THE LORD PHILLIPS OF SUDBURY
	Page 17, line 12, at end insert-- ("(6A) An order may be made under subsection (6) only if the court thinks it just in all the circumstances to do so. (6B) In deciding whether it is just to make an order under subsection (6) the court may consider-- (a) any hardship which would be caused to the successful party if the order is not made; (b) whether it would have been reasonably possible for the successful party to contest the proceedings without entering into a conditional fee agreement; and (c) the extent (if any) to which the costs of the successful party have been increased by the unreasonable behaviour of the party against whom the costs order has been made in the conduct of the proceedings. (6C) In this section, "the successful party" means a party in whose favour a costs order is made.")
	BY THE LORD KINGSLAND THE LORD PHILLIPS OF SUDBURY
	Page 17, line 16, at end insert-- ("(8) A conditional fee agreement which relates to advocacy or litigation services of a solicitor and which does not satisfy all of the conditions applicable to it by virtue of section 58 is unenforceable notwithstanding any provision of, or made under, the Solicitors Act 1974."")