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

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  PART III
  LEGAL SERVICES
 
Funding
Conditional fee agreements.     27. - (1) For section 58 of the Courts and Legal Services Act 1990 substitute-
 
 
"Conditional fee agreements.     58. - (1) A conditional fee 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 conditional fee agreement; but any other conditional fee agreement shall be unenforceable.
 
    (2) For the purposes of this section and section 58A-
 
 
    (a) a conditional fee agreement is an agreement between a person providing advocacy or litigation services and his client which provides for the fees and expenses of the person providing the services, or any part of them, to be payable only in specified circumstances; and
 
    (b) a conditional fee agreement provides for enhanced fees if it provides for the amount of any fees to which it applies to be increased, in specified circumstances, above the amount which would be payable if it were not payable only in specified circumstances.
      (3) The following conditions are applicable to every conditional fee agreement-
 
 
    (a) it must be in writing;
 
    (b) it must not relate to proceedings which cannot be the subject of an enforceable conditional fee agreement; and
 
    (c) it must comply with such requirements (if any) as may be prescribed by the Lord Chancellor.
      (4) The following further conditions are applicable to a conditional fee agreement which provides for enhanced fees-
 
 
    (a) it must relate to proceedings of a description specified by order made by the Lord Chancellor;
 
    (b) it must state the percentage by which the amount of the fees which would be payable if it were not a conditional fee agreement is to be increased; and
 
    (c) that percentage must not exceed the percentage specified in relation to the description of proceedings to which the agreement relates by order made by the Lord Chancellor.
Conditional fee agreements: supplementary.     58A. - (1) The proceedings which cannot be the subject of an enforceable conditional fee agreement are-
 
 
    (a) criminal proceedings; and
 
    (b) family proceedings relating (in whole or in part) to a matter which is neither a financial matter nor a matter concerning property.
      (2) In subsection (1) "family proceedings" means proceedings under any one or more of the following-
 
 
    (a) the Matrimonial Causes Act 1973;
 
    (b) the Adoption Act 1976;
 
    (c) the Domestic Proceedings and Magistrates' Courts Act 1978;
 
    (d) Part III of the Matrimonial and Family Proceedings Act 1984;
 
    (e) Parts I, II and IV of the Children Act 1989;
 
    (f) Part IV of the Family Law Act 1996; and
 
    (g) the inherent jurisdiction of the High Court in relation to children.
      (3) The requirements which the Lord Chancellor may prescribe under section 58(3)(c)-
 
 
    (a) include requirements for the person providing advocacy or litigation services to have provided prescribed information to his client before the agreement is made; and
 
    (b) may be different for different descriptions of conditional fee agreements (and, in particular, may be different for those which provide for enhanced fees and those which do not).
      (4) In section 58(4) "proceedings" includes any sort of proceedings for resolving disputes (and not just proceedings in a court).
 
      (5) Before making an order under section 58(4), the Lord Chancellor shall consult-
 
 
    (a) the designated judges;
 
    (b) the General Council of the Bar;
 
    (c) the Law Society; and
 
    (d) such other authorised bodies (if any) as he considers appropriate.
      (6) Where in any proceedings a costs order is made in favour of any party who has entered into a conditional fee agreement, the costs payable to him may, subject to rules of court, include costs in respect of any fees payable under a conditional fee agreement which provides for the payment of enhanced fees.
 
      (7) Rules of court may make provision with respect to the taxing of any costs which include fees payable under a conditional fee agreement (including one which provides for the payment of enhanced fees)."
 
      (2) In section 120(4) of the Courts and Legal Services Act 1990 (orders and regulations subject to affirmative procedure), for "58," substitute "58(4),".
 
Recovery of insurance premiums by way of costs.     28. Where in any proceedings a costs order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may, subject to rules of court, include costs in respect of the premium of the policy.
 
 
The Legal Services Consultative Panel
Replacement of ACLEC by Consultative Panel.     29. - (1) The Lord Chancellor's Advisory Committee on Legal Education and Conduct is abolished.
 
      (2) In the Courts and Legal Services Act 1990, after section 18 insert-
 
 

"The Legal Services Consultative Panel
The Consultative Panel.     18A. - (1) The Lord Chancellor shall appoint persons to form a panel to be known as the Legal Services Consultative Panel.
 
      (2) The Consultative Panel shall have-
 
 
    (a) the duty of assisting in the maintenance and development of standards in the education, training and conduct of persons offering legal services by considering relevant issues in accordance with a programme of work approved by the Lord Chancellor and, where the Consultative Panel considers it appropriate to do so, making recommendations to him;
 
    (b) the duty of providing to the Lord Chancellor, at his request, advice about particular matters relating to any aspect of the provision of legal services (including the education, training and conduct of persons offering legal services); and
 
    (c) the functions conferred or imposed on it by other provisions of this Act or any other enactment.
      (3) The Lord Chancellor shall consider any recommendations made to him by the Consultative Panel in performance of the duty in subsection (2)(a).
 
      (4) The Lord Chancellor-
 
 
    (a) shall make available to the Consultative Panel appropriate administrative support; and
 
    (b) may pay to any of the persons forming it any such allowances, and make any such reimbursement of expenses, as he considers appropriate.
      (5) For the purposes of the law of defamation the publication of any advice by the Consultative Panel in the exercise of any of its functions shall be absolutely privileged."
 
      (3) In section 119(1) of that Act (interpretation), after the definition of "authorised practitioner" insert-
 
 
    ""Consultative Panel" means the Legal Services Consultative Panel;".
      (4) In Schedule 9 to that Act (exemption from prohibition on preparation of probate papers: approval)-
 
 
    (a) for "Advisory Committee" (in each place) substitute "Consultative Panel",
 
    (b) in paragraph 2(1), for "Advisory Committee's" substitute "Consultative Panel's", and
 
    (c) in paragraphs 2(3) and 8(3), for "Committee" (in each place) substitute "Consultative Panel".
      (5) In the First Schedule to the Public Records Act 1958 (definition of public records), in Part II of the Table set out at the end of paragraph 3, insert at the appropriate place-
 
 
    " The Legal Services Consultative Panel."
 
Rights of audience and rights to conduct litigation
Barristers and solicitors.     30. For sections 31 to 33 of the Courts and Legal Services Act 1990 (deemed rights of barristers and solicitors) substitute-
 
 
"Barristers and solicitors.     31. - (1) Every barrister shall be deemed to have been granted by the General Council of the Bar a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the General Council of the Bar approved for the purposes of section 27 in relation to the right).
 
    (2) Every solicitor shall be deemed to have been granted by the Law Society-
 
 
    (a) a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the Law Society approved for the purposes of section 27 in relation to the right); and
 
    (b) a right to conduct litigation in relation to every court and all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the Law Society approved for the purposes of section 28 in relation to the right).
      (3) A person shall not have a right of audience by virtue of subsection (1) if-
 
 
    (a) he has not been called to the Bar by an Inn of Court; or
 
    (b) he has been disbarred, or is temporarily suspended from practice, by order of an Inn of Court."
Rights of audience: employed advocates.     31. In the Courts and Legal Services Act 1990, after section 31 (as substituted by section 30 above) insert-
 
 
"Employed advocates.     31A. - (1) Where a person who has a right of audience granted by an authorised body is employed as an advocate, any qualification regulations or rules of conduct of the body relating to that right which fall within subsection (2) shall not have effect in relation to him.
 
    (2) Qualification regulations or rules of conduct relating to a right granted by a body fall within this subsection if-
 
 
    (a) they limit the courts before which, or proceedings or circumstances in which, that right may be exercised by members of the body who are employed as advocates; and
 
    (b) they do not impose the same limitation on members of the body who have the right but are not employees.
      (3) For the purposes of this section a person is employed as an advocate if-
 
 
    (a) he is a Crown Prosecutor or is in Crown employment in any other capacity which involves his appearing before courts; or
 
    (b) he is otherwise employed in such a capacity.
      (4) In this section "Crown employment" means employment under or for the purposes of a government department or an officer or body exercising functions on behalf of the Crown."
 
Employees of Legal Services Commission.     32. In the Courts and Legal Services Act 1990, after section 31A (inserted by section 31 above) insert-
 
 
"Advocates and litigators employed by Legal Services Commission.     31B. - (1) Where a person who has a right of audience or right to conduct litigation granted by an authorised body is employed by the Legal Services Commission, any rules of conduct of the body relating to that right which fall within subsection (2) shall not have effect in relation to him.
 
    (2) Rules of conduct relating to a right granted by a body fall within this subsection if-
 
 
    (a) they prohibit or limit the exercise of the right on behalf of members of the public by members of the body who are employees; and
 
    (b) they do not impose the same prohibition or limitation on members of the body who have the right but are not employees."
Rights of audience: change of authorised body.     33. In the Courts and Legal Services Act 1990, after section 31B (inserted by section 32 above) insert-
 
 
"Change of authorised body.     31C. - (1) Where a person-
 
    (a) has at any time had, and been entitled to exercise, a right of audience before a court in relation to proceedings of any description granted by one authorised body; and
 
    (b) becomes a member of another authorised body and has a right of audience before that court in relation to that description of proceedings granted by that body,
  any qualification regulations of that body relating to that right shall not have effect in relation to him.
 
      (2) Subsection (1) does not apply in relation to any qualification regulations to the extent that they impose requirements relating to continuing education or training which have effect in relation to the exercise of the right by all members of the body who have the right.
 
      (3) Subsection (1) does not apply to a person if he has been banned from exercising the right of audience by the body mentioned in paragraph (a) of that subsection as a result of disciplinary proceedings and that body has not lifted the ban."
 
Rights to conduct litigation: barristers and legal executives.     34. - (1) Section 28 of the Courts and Legal Services Act 1990 (rights to conduct litigation) is amended as follows.
 
      (2) In the definition of "authorised body" in subsection (5), after paragraph (a) (which specifies the Law Society), insert-
 
 
    "(aa) the General Council of the Bar;
 
    (ab) the Institute of Legal Executives; and".
      (3) After that subsection insert-
 
 
    "(5A) Nothing in this section shall be taken to require the General Council of the Bar or the Institute of Legal Executives to grant a right to conduct litigation."
 
Authorised bodies: designation and regulations and rules.     35. Schedule 5 (which substitutes new provisions for sections 29 and 30 of, and Schedule 4 to, the Courts and Legal Services Act 1990) has effect.
 
Overriding duties of advocates and litigators.     36. - (1) In section 27 of the Courts and Legal Services Act 1990 (rights of audience), after subsection (2) insert-
 
 
    "(2A) Every person who exercises before any court a right of audience granted by an authorised body has-
 
 
    (a) a duty to the court to act in the interests of justice; and
 
    (b) a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;
  and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them."
 
      (2) In section 28 of that Act (rights to conduct litigation), after subsection (2) insert-
 
 
    "(2A) Every person who exercises in relation to proceedings in any court a right to conduct litigation granted by an authorised body has-
 
 
    (a) a duty to the court to act in the interests of justice; and
 
    (b) a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;
  and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them."
 
Minor and consequential amendments.     37. Schedule 6 (which makes minor and consequential amendments relating to rights of audience and rights to conduct litigation) has effect.
 
 
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