Advice Aid

The Access to Justice Order deals with certain aspects of legal aid and legal proceedings funding. It establishes the Northern Ireland Legal Services Commission. The function of the Commission is to secure, within the resources made available and priorities set in accordance with the legislation, that individuals have access to civil legal services that effectively meet their needs and promote the availability of individuals to such services.

The Commission also aims to ensure that individuals involved in criminal investigations and proceedings have access to criminal defence services as required by the interest of justice.

The Commission is to consist of a Chair and between six and 10 other members appointed by the Lord Chancellors. When appointing persons, regard is to be given to the desirability of ensuring that the members collectively possess experience and knowledge of the work of courts, consumer affairs, social conditions, management, and the provision of services.

The Lord Chancellor may appoint substitute Commissions to deal with civil and other matters related to criminal defence services. The Commission may take any actions it considers necessary or appropriate in discharging its functions or incidental to the same.

The Lord Chancellor may provide guidance to the Commission regarding the manner in which it should discharge its functions. The Commission shall take such guidance into account when considering the manner in which it discharges its functions. However, individual cases may not be the subject of guidance.

The Commission may not fund civil legal services or criminal defence services related to laws other than Northern Ireland law, unless that law is relevant to determining issues under the law of Northern Ireland.

The Legal Aid, Advice, and Assistance (NI) Order 1981, as amended, deals with civil and criminal legal aid.

A person is eligible for advice and assistance if their disposable income does not exceed £234 per week or if they are in receipt of income support, income-based Jobseeker’s Allowance, or other income-related allowances in support of employment, and in all cases, their disposable capital does not exceed £1000. In the case of assistance by way of representation, the limit is £3000.

The weekly sums and capital amounts may be changed from time to time by regulation. Differential amounts in respect of capital sums may apply to representation and other forms of legal aid and assistance.

Legal aid applies to oral or written advice given by a solicitor or, if necessary, counsel in relation to the application of Northern Ireland law in specific circumstances and the steps that may be taken, whether by way of settling a claim, initiating proceedings, making an agreement, will or transaction, or obtaining further legal or other advice or assistance considering the application of Northern Ireland law to the circumstances. Assistance may involve taking those steps or assisting the person in taking them.

The above does not apply to advice or assistance in connection with proceedings before a court or tribunal:

• when a civil legal aid certificate is in force;
• the commission has informed them that legal aid is available, and they have not been informed by the commission that such legal aid has ceased to be available, or in the case of criminal proceedings, when a criminal legal aid certificate is in force.

Therefore, a distinction is made between legal aid in the context of civil and criminal proceedings and legal advice and assistance.

Assistance by representation means assistance provided to a person in initiating core proceedings or conducting them before a court or tribunal in connection with a statutory inquiry. Assistance by way of representation does not apply unless it is approved by an appropriate authority in accordance with the regulations.

Regulations may prescribe the types of proceedings that may be approved, either by reference to the court or tribunal, the issues involved, or the capacity in which the person requires assistance. They may specify whether the assistance by way of representation can be provided for specified proceedings. This may include giving approval in the case of persons who would not be eligible for assistance at a different income rate, lower than that prescribed above.

Regulations provide for committees, courts, and tribunals that are appropriate authorities. Regulations may provide for the procedures to be followed when applying for approval and criteria for approval, as well as conditions that may be imposed.

If a person refuses assistance by way of representation in civil proceedings, then, except as otherwise provided in the regulations, their liability for costs shall not exceed the amount which is reasonable for them to pay, considering all circumstances, including the means of all the parties and their conduct in connection with the dispute.

Regulations may provide that the court, tribunal, or person determining the amount should not take into account the dwelling house, household furniture, and implements of trade, except in cases and to the extent as may be prescribed.

When a person seeks advice or assistance, and it appears to the solicitor or counsel that the cost is likely to exceed the limit applicable, the solicitor shall determine to what extent advice and assistance can be provided without exceeding that limit. They shall not exceed the limit without the approval of the appropriate authority.

The limit is £88 and such other prescribed sum. The cost of giving advice and assistance is to consist of expenses, including fees payable to counsel, fees, and charges that would be properly payable by the solicitor. Reference to the appropriate authority refers to approval given in accordance with regulations by such committee or body of persons.

Generally, a client is not obliged to pay for receiving advice or assistance. However, if their disposable means exceed £100 and they are not directly or indirectly in receipt of income-based support, they may be obliged to make a payment up to an amount as may be prescribed.

Except as otherwise provided in the regulations, charges and fees that would otherwise be recoverable by the solicitor, but for the legal aid provisions, are to be a first charge for the benefit of the solicitor on any costs payable to the client by any other person in relation to the matter in connection with which assistance or advice is given. This includes any property recovered or preserved for the client in connection with the matter, including their rights under any compromise or settlement.

Where the charges or fees charged are insufficient, then the deficit is made up under the legal aid fund. Fees may be required to be taxed or assessed in such a manner as the regulations may prescribe.