Access to Justice Bill [H.L.] -
Amendments to be debated in the House of Lords
- continued
House of Lords

back to previous amendments
 
  
Clause 24
 
  
BY THE LORD CHANCELLOR
 
140     Page 14, leave out line 36 
  
Clause 27
 
  
BY THE LORD CHANCELLOR
 
141     Page 15, line 28, leave out from second ("agreement") to ("or") in line 31 and insert ("with a person providing advocacy or litigation services which provides for his fees and expenses,") 
  
BY THE LORD HUNT OF WIRRAL
 
142*     Page 15, line 45, after ("agreement") insert--
    ("(  )  it must not be used in substitution for before the event legal expenses insurance cover;")
 
  
BY THE LORD KINGSLAND
THE LORD PHILLIPS OF SUDBURY
THE LORD GOODHART
 
143     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
 
144     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.")
 
  
BY THE LORD CHANCELLOR
 
145     Page 16, line 18, leave out from ("proceedings") to end of line 20 
146     Page 16, line 37, leave out ("to his client") 
147     Page 17, line 5, leave out ("authorised bodies (if any)") and insert ("bodies") 
  
BY THE LORD GOODHART
THE LORD PHILLIPS OF SUDBURY
 
148     Page 17, line 9, after ("subject") insert ("to subsections (6A) and (6B) and") 
  
BY THE LORD HUNT OF WIRRAL
 
149     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
 
150     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
THE LORD ACKNER
 
151     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."")
 
  
Clause 28
 
  
BY THE LORD GOODHART
THE LORD PHILLIPS OF SUDBURY
 
152     Page 17, line 22, after ("subject") insert ("to subsections (2) to (4) and") 
  
BY THE LORD HUNT OF WIRRAL
 
153     Page 17, line 23, at end insert ("provided that no such premium shall be recoverable unless proper notice has been given as prescribed by rules of court") 
  
BY THE LORD GOODHART
THE LORD PHILLIPS OF SUDBURY
THE LORD ACKNER
 
154     Page 17, line 23, at end insert--
 
    ("(2)  An order may be made under this section only if the court thinks it just in all the circumstances to do so.
 
    (3)  In deciding whether it is just to make an order under this section 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 taking out such an insurance policy; and
    (c)  such other matters as the court thinks fit.
    (4)  In this section "the successful party" means a party in whose favour a court order is made.")
 
  
After Clause 28
 
  
BY THE LORD KINGSLAND
THE LORD PHILLIPS OF SUDBURY
 
155     Insert the following new Clause-- 
     ("  .--(1)  Rules of court may provide for a person providing legal services, in connection with any proceedings, under--
    (a)  a conditional fee agreement (as defined in section 58(2) of the Courts and Legal Services Act 1990); or
    (b)  some other arrangement of a specified kind,
to recover by way of costs, in the specified manner, specified items of expense in relation to the assumption of specified risks associated with the operation of such agreements or arrangements.
 
    (2)  In subsection (1) "specified" means specified in rules of court.")
Recovery of specified expenses by way of costs.
  
Clause 29
 
  
BY THE LORD CHANCELLOR
 
156*     Page 17, line 31, at end insert--
 
    ("(  )  In appointing persons to the Consultative Panel the Lord Chancellor shall have regard to the desirability of securing that the Consultative Panel includes persons who (between them) have experience in or knowledge of--
    (a)  the provision of legal services;
    (b)  the lay advice sector;
    (c)  civil or criminal proceedings and the working of the courts;
    (d)  legal education and training;
    (e)  the maintenance of the professional standards of persons who provide legal services;
    (f)  the maintenance of standards in professions other than the legal profession;
    (g)  consumer affairs;
    (h)  commercial affairs; and
    (i)  social conditions.")
 
  
BY THE LORD PHILLIPS OF SUDBURY
THE LORD ACKNER
THE LORD ARCHER OF SANDWELL
 
157*     Page 17, line 45, after ("services);") insert--
    ("(  )  the duty of giving such advice as it thinks appropriate to the Lord Chancellor, after consultation with the Civil Justice Council established under the Civil Procedure Act 1997 with a view to ensuring that conditional fee agreements are being implemented fairly and in the interests of justice;")
 
  
BY THE LORD CHANCELLOR
 
158     Page 18, line 5, at end insert--
 
    ("(  )  The Lord Chancellor shall publish--
    (a)  any recommendations made to him by the Consultative Panel in performance of the duty in paragraph (a) of subsection (2); and
    (b)  any advice provided to him by the Consultative Panel in performance of the duty in paragraph (b) of that subsection.")
 
  
Clause 30
 
  
BY THE LORD ACKNER
 
159     Leave out Clause 30 
  
Clause 31
 
  
BY THE LORD KINGSLAND
 
160     Page 19, line 24, at end insert ("as regards his providing representation in the course of the Commission's exercise of its power under section 14(3)(f) of the Access to Justice Act 1999") 
  
BY THE LORD ACKNER
 
161*     Leave out Clause 31 
  
After Clause 32
 
  
BY THE LORD KINGSLAND
THE LORD ACKNER
 
162     Insert the following new Clause-- 
     ("  .  In the Courts and Legal Services Act 1990, after section 31B (inserted by section 32 above) insert--Employed prosecuting advocates; conflicts of interest involving the Government.
 Duty to instruct independent advocate to prosecute certain cases.     31C.--(1)  An advocate employed as a Crown Prosecutor or in Crown employment shall not be instructed by a public prosecuting authority as an advocate to prosecute in any criminal proceedings where, in the opinion of that authority or of the court dealing with the proceedings, the interests of justice require that the case be prosecuted by an advocate in independent practice.
 
    (2)  In particular, the interests of justice are to be treated as requiring the instruction of an advocate in independent practice if the authority or the court considers that--
    (a)  the case raises, or seems likely to raise, issues of political sensitivity for the government, any member of the government or any government department;
    (b)  issues arise, or seem likely to arise, as to the withholding of documents on the grounds that disclosure would be injurious to the public interest;
    (c)  the case involves, or seems likely to involve, some other significant conflict of interest affecting the government, any member of the government or any government department.
    (3)  In this section--
    advocate in independent practice" means an advocate not in Crown employment; and
    Crown employment" means employment under or for the purposes of a government department or a body exercising functions on behalf of the Crown."")
 
  
Schedule 5
 
  
BY THE LORD CHANCELLOR
 
163     Page 66, leave out line 1 and insert ("If the Lord Chancellor has decided to refuse the application he shall also") 
164     Page 68, line 36, at end insert--
 
    ("(  )  The Lord Chancellor may not refuse the application unless he has received advice from the Consultative Panel.")
 
165     Page 68, leave out line 39 and insert ("If the Lord Chancellor has decided to refuse the application he shall also") 
166     Page 69, line 4, leave out from ("Chancellor") to ("he") in line 6 and insert ("considers--
    (a)  that any of the qualification regulations of an authorised body may unduly restrict a right of audience or right to conduct litigation or the exercise of such a right, or
    (b)  that any of the rules of conduct of an authorised body may unduly restrict the exercise of such a right,")
 
  
BY THE LORD KINGSLAND
THE LORD GOODHART
 
167     Page 69, line 5, leave out from ("to") to end of line 6 and insert ("change--
    (a)  a right to conduct litigation or right of audience granted by an authorised body;
    (b)  a requirement as to the education and training which members of the body must receive in order to be entitled to exercise such a right; or
    (c)  a rule as to the conduct required of members of the body exercising such a right,
he may give written notice to the body identifying the provisions of its qualification regulations or rules of conduct which he proposes to alter to give effect to the change.")
 
  
BY THE LORD CHANCELLOR
 
168     Page 69, line 35, leave out ("may") and insert ("shall") 
169     Page 69, line 44, leave out ("may") and insert ("shall") 
  
BY THE LORD GOODHART
THE LORD THOMAS OF GRESFORD
THE LORD ACKNER
 
170     Page 70, line 28, at end insert--
 
    ("(  )  The Lord Chancellor shall not decide to make the alterations unless at least two of the designated judges have advised him that the alterations should be made.")
 
  
BY THE LORD CHANCELLOR
 
171     Page 70, line 39, leave out from beginning to ("of") in line 40 and insert ("If the Lord Chancellor has decided to make the alterations he shall also notify the authorised body") 
  
BY THE LORD GOODHART
THE LORD THOMAS OF GRESFORD
 
172     Page 73, line 2, at end insert--
 
    ("(  )  The Lord Chancellor shall not decide to make the recommendation unless at least two of the designated judges have advised him that the recommendation should be made.")
 
  
BY THE LORD CHANCELLOR
 
173     Page 73, line 21, at end insert ("and of his reasons for recommending that it be made") 
 
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Prepared 11 February 1999