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

House of Lords

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

COMMONS AMENDMENTS

[The page and line refer to Bill 67 as first printed for the Commons.]

Amendment
No.

Clause 1

1      Leave out Clause 1

Clause 4

2      Page 3, line 11, leave out from ("grants") to end of line 12 and insert ("(with or without conditions),")

Clause 5

3      Page 3, line 41, leave out ("of a type and quality appropriate to") and insert ("that effectively")

4      Page 4, line 9, leave out ("can") and insert ("is required to")

5      Page 4, line 10, at end insert--

    ("(  )  Every person who exercises any function relating to the Community Legal Service shall have regard to the desirability of exercising it, so far as is reasonably practicable, so as to--
(a)  promote improvements in the range and quality of services provided as part of the Community Legal Service and in the ways in which they are made accessible to those who need them,

(b)  secure that the services provided in relation to any matter are appropriate having regard to its nature and importance, and

(c)  achieve the swift and fair resolution of disputes without unnecessary or unduly protracted proceedings in court.")

6      Page 4, line 14, leave out from ("for") to ("quality") in line 16 and insert (", and the provision of, services of the descriptions specified in subsection (2) and about the")

7      Page 4, line 32, at end insert--

    ("(7A)  The Commission may charge--
(a)  for accreditation,

(b)  for monitoring the services provided by accredited persons and bodies, and

(c)  for authorising accreditation by others;
and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.")

8      Page 4, line 34, leave out ("(7)") and insert ("(7A)")

Clause 6

9      Page 5, line 3, at end insert--

    ("(  )  The Lord Chancellor shall lay before each House of Parliament a copy of every determination under subsection (2)(a).")

Clause 9

10      Page 7, line 14, leave out ("requiring the furnishing of information or imposing other") and insert ("imposing")

Clause 11

11      Page 8, line 37, leave out from ("both,") to end of line 38

12      Page 8, line 43, leave out from ("payment") to ("or") in line 45 and insert ("in respect of the cost of services required by the regulations to be made by him later than the time when the services are provided,")

Clause 12

13      Page 9, line 22, leave out from beginning to ("shall") in line 25 and insert ("Except in prescribed circumstances, costs ordered against an individual in relation to any proceedings or part of proceedings funded for him")

14      Page 9, line 28, at end insert ("to which the proceedings relate")

15      Page 9, line 29, leave out from beginning to ("his") in line 30 and insert ("and for this purpose proceedings, or a part of proceedings, are funded for an individual if services relating to the proceedings or part are funded for him by the Commission as part of the Community Legal Service.

    (1A)  In assessing for the purposes of subsection (1) the financial resources of an individual for whom services are funded by the Commission as part of the Community Legal Service,")

16      Page 9, line 33, leave out ("that") and insert ("subsections (1) and (1A)")

17      Page 9, line 33, leave out ("cases in which services have been") and insert ("relation to proceedings in which services are")

18      Page 9, line 38, leave out ("the services were funded,") and insert ("services are funded by the Commission as part of the Community Legal Service,")

19      Page 9, leave out lines 42 and 43

20      Page 9, line 46, at end insert--
("(da)  requiring the payment by the Commission of the whole or part of any costs incurred by a party for whom services are not funded by the Commission as part of the Community Legal Service,")

21      Page 10, line 2, leave out ("such a party") and insert ("a party for whom services are so funded")

Clause 13

22      Page 10, line 15, leave out subsection (2)

23      Page 10, line 36, leave out subsection (4) and insert--

    ("(  )  The Commission shall fund services as part of the Criminal Defence Service in accordance with sections 14 and 15.")

24      Page 10, line 44, at end insert--

    ("(5A)  The Commission may charge--
(a)  for accreditation,

(b)  for monitoring the services provided by accredited persons and bodies, and

(c)  for authorising accreditation by others;
and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.")

25      Page 10, line 46, leave out ("subsection (5)") and insert ("subsections (5) and (5A)")

Clause 14

26      Page 11, line 5, leave out ("in such other circumstances as the Lord Chancellor may prescribe") and insert ("involved in criminal investigations in such other circumstances as may be prescribed;

and for this purpose "criminal investigations" means investigations relating to offences or to individuals convicted of an offence.")

27      Page 11, line 18, after ("assistance,") insert--
("(  )  itself providing advice or assistance,")

28      Page 11, line 20, leave out (", except itself providing advice or assistance")

Clause 15

29      Page 11, line 40, at end insert--
("(  )  itself providing representation,")

30      Page 11, line 43, leave out (", except itself providing representation")

31      Page 12, line 25, at end insert--
("(  )  an individual who has been provided with advice or assistance funded by the Commission under section 14 is to be taken to have selected as his representative pursuant to that right the person who provided the advice or assistance,")

32      Page 12, line 35, at end insert--

    ("(10)  Regulations may provide that in prescribed circumstances the Commission is not required to fund, or to continue to fund, representation for an individual by a particular representative (but such provision shall not prejudice any right of the individual to select another representative).

    (11)  The circumstances which may be prescribed by regulations under subsection (8) or (10) include that a determination has been made by a prescribed body or person.")

33      Divide Clause 15 into two Clauses, the first (Representation) consisting of subsections (1) to (6) and the second (Selection of representative etc.) of subsections (7) to (11)

Clause 16

34      Page 12, line 37, after ("Commission") insert (", and employees of any body established and maintained by the Commission,")

35      Page 13, line 1, at end insert--

("and duties on employees who are members of a professional body to comply with the rules of the body.")

36      Page 13, line 4, leave out from ("shall") to end of line 5 and insert ("consult the Law Society and the General Council of the Bar and such other bodies or persons as it considers appropriate")

Clause 17

37      Page 13, line 19, leave out ("the Crown Court") and insert ("any court other than a magistrates' court")

38      Page 13, line 20, leave out ("trial judge") and insert ("court")

39      Page 13, leave out line 22 and insert ("any representation so funded for him (in proceedings in that or any other court).")

40      Page 13, line 31, leave out from ("furnishing") to second ("to") in line 32 and insert ("of information and evidence to the court or the Commission for the purpose of enabling the court")

41      Page 13, line 34, at end insert--
("(  )  prohibiting individuals who are required to furnish information or evidence from dealing with property until they have furnished the information or evidence or until a decision whether to make an order, or the amount to be paid, has been made,")

Clause 22

42      Page 16, line 6, at end insert ("and any authorised by the Commission to be taken.")

43      Page 16, line 7, leave out second ("of") and insert ("to")

44      Page 16, line 18, leave out subsection (5)

45      Page 16, line 28, at end insert--

    ("(7)  Regulations made under subsection (6) may in particular authorise the exercise of the functions of any court or tribunal by any member or officer of that or any other court or tribunal.")

Clause 25

46      Page 17, line 24, at end insert ("(including different areas)")

47      Page 17, line 26, leave out (" 12(3)(b)") and insert (" 12(1) or (3)(b)")

48      Page 17, line 27, leave out ("(c)") and insert ("(da)")

49      Page 17, line 27, after (" 15(8)(a)") insert ("or (10)")

Clause 26

50      Page 17, line 44, after first ("and") insert (", subject to any time limits which may be prescribed,")

Clause 28

51      Page 18, line 16, leave out (""disability working allowance"") and insert (""disabled person's tax credit"")

After Clause 28

52      Insert the following new Clause--

    (". In section 25(7) of the Legal Aid (Scotland) Act 1986 (legal aid in appeals), for "Secretary of State under section 124" substitute "Scottish Criminal Cases Review Commission under section 194B".") References by Scottish Criminal Cases Review Commission.
1986 c. 47.

Clause 29

53      Page 18, line 25, after ("but") insert ("(subject to subsection (5))")

54      Page 18, line 33, leave out ("enhanced fees") and insert ("a success fee")

55      Page 19, line 4, leave out ("enhanced fees") and insert ("a success fee")

56      Page 19, line 14, at end insert--

    ("(5)  If a conditional fee agreement is an agreement to which section 57 of the Solicitors Act 1974 (non-contentious business agreements between solicitor and client) applies, subsection (1) shall not make it unenforceable.") 1974 c. 47.

57      Page 19, line 39, leave out ("enhanced fees") and insert ("a success fee")

58      Page 19, line 41, leave out ("58(4)") and insert ("58 and this section (and in the definitions of "advocacy services" and "litigation services" as they apply for their purposes)")

59      Page 19, line 43, at end insert (", whether commenced or contemplated.")

60      Page 20, line 4, leave out from beginning to ("any") in line 7 and insert ("A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of")

61      Page 20, line 8, leave out ("the payment of enhanced fees") and insert ("a success fee")

62      Page 20, line 11, leave out ("taxing") and insert ("assessment")

63      Page 20, line 13, leave out ("the payment of enhanced fees") and insert ("a success fee")

After Clause 29

65      Insert the following new Clause--

    (". In the Courts and Legal Services Act 1990, after section 58A (inserted by section 29 above) insert-- Litigation funding agreements.
1990 c. 41.

Litigation funding agreements.      58B.--(1) A litigation funding agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a litigation funding agreement.

    (2)  For the purposes of this section a litigation funding agreement is an agreement under which--
(a)  a person ("the funder") agrees to fund (in whole or in part) the provision of advocacy or litigation services (by someone other than the funder) to another person ("the litigant"); and

(b)  the litigant agrees to pay a sum to the funder in specified circumstances.
    (3)  The following conditions are applicable to a litigation funding agreement--
(a)  the funder must be a person, or person of a description, prescribed by the Lord Chancellor;

(b)  the agreement must be in writing;

(c)  the agreement must not relate to proceedings which by virtue of section 58A(1) and (2) cannot be the subject of an enforceable conditional fee agreement or to proceedings of any such description as may be prescribed by the Lord Chancellor;

(d)  the agreement must comply with such requirements (if any) as may be so prescribed;

(e)  the sum to be paid by the litigant must consist of any costs payable to him in respect of the proceedings to which the agreement relates together with an amount calculated by reference to the funder's anticipated expenditure in funding the provision of the services; and

(f)  that amount must not exceed such percentage of that anticipated expenditure as may be prescribed by the Lord Chancellor in relation to proceedings of the description to which the agreement relates.
    (4)  Regulations under subsection (3)(a) may require a person to be approved by the Lord Chancellor or by a prescribed person.

    (5)  The requirements which the Lord Chancellor may prescribe under subsection (3)(d)--
(a)  include requirements for the funder to have provided prescribed information to the litigant before the agreement is made; and

(b)  may be different for different descriptions of litigation funding agreements.
    (6)  In this section (and in the definitions of "advocacy services" and "litigation services" as they apply for its purposes) "proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated.

    (7)  Before making regulations under this section, the Lord Chancellor shall consult--
(a)  the designated judges;

(b)  the General Council of the Bar;

(c)  the Law Society; and

(d)  such other bodies as he considers appropriate.
    (8)  A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any amount payable under a litigation funding agreement.

    (9)  Rules of court may make provision with respect to the assessment of any costs which include fees payable under a litigation funding agreement."")

Clause 30

66      Page 20, line 19, after ("subject") insert ("in the case of court proceedings")

© Parliamentary copyright 1999
Prepared 24 June 1999

Amendment No.
	Clause 1
1	Leave out Clause 1
	Clause 4
2	Page 3, line 11, leave out from ("grants") to end of line 12 and insert ("(with or without conditions),")
	Clause 5
3	Page 3, line 41, leave out ("of a type and quality appropriate to") and insert ("that effectively")
4	Page 4, line 9, leave out ("can") and insert ("is required to")
5	Page 4, line 10, at end insert-- ("( ) Every person who exercises any function relating to the Community Legal Service shall have regard to the desirability of exercising it, so far as is reasonably practicable, so as to-- (a) promote improvements in the range and quality of services provided as part of the Community Legal Service and in the ways in which they are made accessible to those who need them, (b) secure that the services provided in relation to any matter are appropriate having regard to its nature and importance, and (c) achieve the swift and fair resolution of disputes without unnecessary or unduly protracted proceedings in court.")
6	Page 4, line 14, leave out from ("for") to ("quality") in line 16 and insert (", and the provision of, services of the descriptions specified in subsection (2) and about the")
7	Page 4, line 32, at end insert-- ("(7A) The Commission may charge-- (a) for accreditation, (b) for monitoring the services provided by accredited persons and bodies, and (c) for authorising accreditation by others; and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.")
8	Page 4, line 34, leave out ("(7)") and insert ("(7A)")
	Clause 6
9	Page 5, line 3, at end insert-- ("( ) The Lord Chancellor shall lay before each House of Parliament a copy of every determination under subsection (2)(a).")
	Clause 9
10	Page 7, line 14, leave out ("requiring the furnishing of information or imposing other") and insert ("imposing")
	Clause 11
11	Page 8, line 37, leave out from ("both,") to end of line 38
12	Page 8, line 43, leave out from ("payment") to ("or") in line 45 and insert ("in respect of the cost of services required by the regulations to be made by him later than the time when the services are provided,")
	Clause 12
13	Page 9, line 22, leave out from beginning to ("shall") in line 25 and insert ("Except in prescribed circumstances, costs ordered against an individual in relation to any proceedings or part of proceedings funded for him")
14	Page 9, line 28, at end insert ("to which the proceedings relate")
15	Page 9, line 29, leave out from beginning to ("his") in line 30 and insert ("and for this purpose proceedings, or a part of proceedings, are funded for an individual if services relating to the proceedings or part are funded for him by the Commission as part of the Community Legal Service. (1A) In assessing for the purposes of subsection (1) the financial resources of an individual for whom services are funded by the Commission as part of the Community Legal Service,")
16	Page 9, line 33, leave out ("that") and insert ("subsections (1) and (1A)")
17	Page 9, line 33, leave out ("cases in which services have been") and insert ("relation to proceedings in which services are")
18	Page 9, line 38, leave out ("the services were funded,") and insert ("services are funded by the Commission as part of the Community Legal Service,")
19	Page 9, leave out lines 42 and 43
20	Page 9, line 46, at end insert-- ("(da) requiring the payment by the Commission of the whole or part of any costs incurred by a party for whom services are not funded by the Commission as part of the Community Legal Service,")
21	Page 10, line 2, leave out ("such a party") and insert ("a party for whom services are so funded")
	Clause 13
22	Page 10, line 15, leave out subsection (2)
23	Page 10, line 36, leave out subsection (4) and insert-- ("( ) The Commission shall fund services as part of the Criminal Defence Service in accordance with sections 14 and 15.")
24	Page 10, line 44, at end insert-- ("(5A) The Commission may charge-- (a) for accreditation, (b) for monitoring the services provided by accredited persons and bodies, and (c) for authorising accreditation by others; and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.")
25	Page 10, line 46, leave out ("subsection (5)") and insert ("subsections (5) and (5A)")
	Clause 14
26	Page 11, line 5, leave out ("in such other circumstances as the Lord Chancellor may prescribe") and insert ("involved in criminal investigations in such other circumstances as may be prescribed; and for this purpose "criminal investigations" means investigations relating to offences or to individuals convicted of an offence.")
27	Page 11, line 18, after ("assistance,") insert-- ("( ) itself providing advice or assistance,")
28	Page 11, line 20, leave out (", except itself providing advice or assistance")
	Clause 15
29	Page 11, line 40, at end insert-- ("( ) itself providing representation,")
30	Page 11, line 43, leave out (", except itself providing representation")
31	Page 12, line 25, at end insert-- ("( ) an individual who has been provided with advice or assistance funded by the Commission under section 14 is to be taken to have selected as his representative pursuant to that right the person who provided the advice or assistance,")
32	Page 12, line 35, at end insert-- ("(10) Regulations may provide that in prescribed circumstances the Commission is not required to fund, or to continue to fund, representation for an individual by a particular representative (but such provision shall not prejudice any right of the individual to select another representative). (11) The circumstances which may be prescribed by regulations under subsection (8) or (10) include that a determination has been made by a prescribed body or person.")
33	Divide Clause 15 into two Clauses, the first (Representation) consisting of subsections (1) to (6) and the second (Selection of representative etc.) of subsections (7) to (11)
	Clause 16
34	Page 12, line 37, after ("Commission") insert (", and employees of any body established and maintained by the Commission,")
35	Page 13, line 1, at end insert-- ("and duties on employees who are members of a professional body to comply with the rules of the body.")
36	Page 13, line 4, leave out from ("shall") to end of line 5 and insert ("consult the Law Society and the General Council of the Bar and such other bodies or persons as it considers appropriate")
	Clause 17
37	Page 13, line 19, leave out ("the Crown Court") and insert ("any court other than a magistrates' court")
38	Page 13, line 20, leave out ("trial judge") and insert ("court")
39	Page 13, leave out line 22 and insert ("any representation so funded for him (in proceedings in that or any other court).")
40	Page 13, line 31, leave out from ("furnishing") to second ("to") in line 32 and insert ("of information and evidence to the court or the Commission for the purpose of enabling the court")
41	Page 13, line 34, at end insert-- ("( ) prohibiting individuals who are required to furnish information or evidence from dealing with property until they have furnished the information or evidence or until a decision whether to make an order, or the amount to be paid, has been made,")
	Clause 22
42	Page 16, line 6, at end insert ("and any authorised by the Commission to be taken.")
43	Page 16, line 7, leave out second ("of") and insert ("to")
44	Page 16, line 18, leave out subsection (5)
45	Page 16, line 28, at end insert-- ("(7) Regulations made under subsection (6) may in particular authorise the exercise of the functions of any court or tribunal by any member or officer of that or any other court or tribunal.")
	Clause 25
46	Page 17, line 24, at end insert ("(including different areas)")
47	Page 17, line 26, leave out (" 12(3)(b)") and insert (" 12(1) or (3)(b)")
48	Page 17, line 27, leave out ("(c)") and insert ("(da)")
49	Page 17, line 27, after (" 15(8)(a)") insert ("or (10)")
	Clause 26
50	Page 17, line 44, after first ("and") insert (", subject to any time limits which may be prescribed,")
	Clause 28
51	Page 18, line 16, leave out (""disability working allowance"") and insert (""disabled person's tax credit"")
	After Clause 28
52	Insert the following new Clause--
	(". In section 25(7) of the Legal Aid (Scotland) Act 1986 (legal aid in appeals), for "Secretary of State under section 124" substitute "Scottish Criminal Cases Review Commission under section 194B".")		References by Scottish Criminal Cases Review Commission. 1986 c. 47.
	Clause 29
53	Page 18, line 25, after ("but") insert ("(subject to subsection (5))")
54	Page 18, line 33, leave out ("enhanced fees") and insert ("a success fee")
55	Page 19, line 4, leave out ("enhanced fees") and insert ("a success fee")
56	Page 19, line 14, at end insert--
	("(5) If a conditional fee agreement is an agreement to which section 57 of the Solicitors Act 1974 (non-contentious business agreements between solicitor and client) applies, subsection (1) shall not make it unenforceable.")		1974 c. 47.
57	Page 19, line 39, leave out ("enhanced fees") and insert ("a success fee")
58	Page 19, line 41, leave out ("58(4)") and insert ("58 and this section (and in the definitions of "advocacy services" and "litigation services" as they apply for their purposes)")
59	Page 19, line 43, at end insert (", whether commenced or contemplated.")
60	Page 20, line 4, leave out from beginning to ("any") in line 7 and insert ("A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of")
61	Page 20, line 8, leave out ("the payment of enhanced fees") and insert ("a success fee")
62	Page 20, line 11, leave out ("taxing") and insert ("assessment")
63	Page 20, line 13, leave out ("the payment of enhanced fees") and insert ("a success fee")
	After Clause 29
65	Insert the following new Clause--
	(". In the Courts and Legal Services Act 1990, after section 58A (inserted by section 29 above) insert--		Litigation funding agreements. 1990 c. 41.
	Litigation funding agreements.	58B.--(1) A litigation funding agreement which satisfies all of the conditions applicable to it by virtue of this section shall not be unenforceable by reason only of its being a litigation funding agreement. (2) For the purposes of this section a litigation funding agreement is an agreement under which-- (a) a person ("the funder") agrees to fund (in whole or in part) the provision of advocacy or litigation services (by someone other than the funder) to another person ("the litigant"); and (b) the litigant agrees to pay a sum to the funder in specified circumstances. (3) The following conditions are applicable to a litigation funding agreement-- (a) the funder must be a person, or person of a description, prescribed by the Lord Chancellor; (b) the agreement must be in writing; (c) the agreement must not relate to proceedings which by virtue of section 58A(1) and (2) cannot be the subject of an enforceable conditional fee agreement or to proceedings of any such description as may be prescribed by the Lord Chancellor; (d) the agreement must comply with such requirements (if any) as may be so prescribed; (e) the sum to be paid by the litigant must consist of any costs payable to him in respect of the proceedings to which the agreement relates together with an amount calculated by reference to the funder's anticipated expenditure in funding the provision of the services; and (f) that amount must not exceed such percentage of that anticipated expenditure as may be prescribed by the Lord Chancellor in relation to proceedings of the description to which the agreement relates. (4) Regulations under subsection (3)(a) may require a person to be approved by the Lord Chancellor or by a prescribed person. (5) The requirements which the Lord Chancellor may prescribe under subsection (3)(d)-- (a) include requirements for the funder to have provided prescribed information to the litigant before the agreement is made; and (b) may be different for different descriptions of litigation funding agreements. (6) In this section (and in the definitions of "advocacy services" and "litigation services" as they apply for its purposes) "proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a court), whether commenced or contemplated. (7) Before making regulations under this section, the Lord Chancellor shall consult-- (a) the designated judges; (b) the General Council of the Bar; (c) the Law Society; and (d) such other bodies as he considers appropriate. (8) A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of any amount payable under a litigation funding agreement. (9) Rules of court may make provision with respect to the assessment of any costs which include fees payable under a litigation funding agreement."")
	Clause 30
66	Page 20, line 19, after ("subject") insert ("in the case of court proceedings")