Civil Legal Aid
Civil Legal Services
Civil legal services encompass advice, guidance, and representation, excluding advice, assistance, and representation in relation to criminal defence services. The Lord Chancellor may, by order, specify that civil legal services should include services other than advice, assistance, and representation, falling within the descriptions below and which are not services that the Commission is required to fund as criminal defence services.
The services that may be prescribed above include general information about the law and legal system, the availability of legal services, provision of help by giving advice on how the law applies in particular circumstances, provision of help in preventing, settling, or otherwise resolving disputes about legal rights and duties, provision of help in enforcing duties arising from the resolution of such disputes, and provision of help in relation to legal proceedings not related to disputes.
The order may make financial provisions regarding the provision of services, including provisions about eligibility, contributions, charges, remunerations, and costs. Every person who exercises any functions relating to civil legal services shall have regard to the desirability of exercising those functions, so far as reasonably practicable, to promote improvements in the quality of those services and in the ways they are made accessible to those who need them. The aim is to secure that the services provided in relation to any matter are appropriate to its nature and importance, and to achieve swift and fair resolution of disputes without unnecessary or unduly protracted court proceedings.
The Commission shall establish and maintain a civil legal services fund. The Lord Chancellor shall fund the fund and may determine the manner and times in which sums are to be paid to the Commission, and may impose conditions on their payment.
In funding legal services, the Commission shall aim to obtain the best value for money. The legal services fund is to include publicly funded money, sums received under regulations providing for charges, sums received under court orders, as specified below, and such other receipts as the Lord Chancellor may, with the agreement of the Treasury, determine.
The Commission shall set priorities in funding civil legal services. These priorities are to be set in accordance with directions given by the Lord Chancellor, taking into account the need for such services.
The Commission may fund civil legal services by entering contracts with persons or bodies of persons for the provision of services, making payments to persons or bodies of persons in relation to services, making grants or loans to persons or bodies to enable them to provide or facilitate the provision of services, establishing and maintaining bodies to provide and facilitate the provision of services, making grants and loans to individuals to enable them to obtain services, providing the services itself, and taking any other actions it considers appropriate.
Different civil legal services may be provided by different means in different areas of Northern Ireland or in relation to different descriptions of cases.
Certain services specified in Schedule 2 may not be funded. Regulations may add new services, omit or vary any services, and describe services that are not to be funded by reference to the court or tribunal where proceedings take place, the issues involved, or the capacity of the person seeking a service.
The Lord Chancellor may, by direction, fund Schedule 2 services in the manner specified in the direction. He may also authorize the Commission to fund any of those services in specific circumstances and subject to conditions specified.
The Commission may only fund civil legal services for an individual if their financial resources are such that, under regulations, they are an individual for whom services may be funded by the Commission. Regulations may provide and prescribe circumstances or subject to prescribed conditions, services of a description that may be funded without reference to the financial resources of the individual. Information shall be required to be furnished in relation to resources.
The Commission is to fund civil legal services as it determines appropriate. The decision is to be made by the Commission or by individuals prescribed by order. The Commission may fund representation for a limited period, for specified proceedings, or for the purposes of limited aspects of proceedings. It may amend, withdraw, or revoke the representation or vary or remove limitations imposed.
Regulations may prohibit the giving of advice or assistance without the approval of the Commission to the extent that the cost of giving it exceeds such limit as may be prescribed. They may prohibit the funding of advice or assistance by the Commission except where it is provided by a person in pursuance of a contract with the Commission.
The Commission is to prepare a funding code setting out criteria according to which a decision is to be taken regarding whether to fund civil legal services for an individual for whom they may be funded. If funding is deemed appropriate, the code also outlines what services are to be funded.
In setting the criteria, the Commission shall consider factors such as the likely cost of funding and benefits, the availability of funds in relation to other present and future demands, the importance of matters in relation to which services are to be provided, the availability of unfunded services to the individual, the eligibility to avail of them, the prospects of success if services are sought in relation to a dispute, the conduct of the individual in connection with the services funded by the Commission, public interest, and any other specified factors.
Regulations set out the procedure for applying for funding, the conditions that must be satisfied, provisions for the disclosure of information, and provisions for the review of funding decisions.
Generally, civil legal services are to be funded without a requirement for payment. Regulations may provide for an individual to whom services are funded to pay a fee of such amount as is fixed or determined, if their resources or relevant conduct make them liable to do so under the regulations.
They may also be required to pay the cost of the services or make a contribution. If the services relate to a dispute and they agree to make a payment that may exceed the cost of the services, they may do so only in specified circumstances, and only in those circumstances should they make a payment of the agreed amount. Regulations may include provisions for loans in connection with funding civil legal services and payments in respect of the cost of services required by the regulations to be made on credit, including part deferred payment.
Except in prescribed circumstances, costs ordered against an individual in relation to whom proceedings have been funded shall not exceed the amount which is reasonable for them to pay, having regard to all the circumstances, including the financial resources of all parties to the proceedings and their conduct in connection with the dispute, for this purpose.
In assessing the financial resources of an individual to whom civil legal aid services are funded by the Commission, their clothes, household furniture, tools, and implements of their trade are disregarded.
Where an individual, for whom legal services relating to proceedings or part of proceedings are funded by the Commission, are decided in favour of an unassisted party, the court may make an order for the payment by the Commission to the unassisted party of the whole or part of the costs incurred. Before making such an order, the court shall consider what orders should be made for costs against a person for whom civil legal services relating to the proceedings are funded by the Commission and for determining their liability in respect of such costs.
An order for costs under this provision may only be made if an order for costs could be made in such case generally as respects the costs incurred in a court of first instance, where proceedings were instituted by the party for whom civil legal services were provided, and the court is satisfied that the unassisted party will suffer financial hardship unless the order is made. In any case, the court must be satisfied that it is just and equitable in the circumstances that provision for the costs should be made out of public funds.
No appeal lies against the determination under this provision. The term “costs” means costs as between party and party, and includes the costs of applying for an order under this provision. If a person qualifies for legal aid or obtains legal aid for only part of the case, the reference to costs above, where the parties lose, is limited to the part of the case funded by the Commission.
Regulations may specify the principles to be applied in determining the amount of any costs that may be awarded against a person for whom civil legal services are funded, limit the circumstances in which, or the extent to which, an order for costs may be enforced against such a party, specify the cases in which, and the extent to which, such a party may be required to give security for costs, require payment by the Commission of the whole or part of the costs incurred by a party who is unassisted, specify principles to be applied in determining the amount of costs to be awarded, require payment to the Commission, or the person or body of persons to whom the services are provided, of the whole or part of the sum awarded by way of costs to such a party, and specify the cost tribunal or other person by whom the amount of any costs is to be determined and the extent to which the determination is to be final.