Statutory Instrument 1991 No. 2038

The Legal Aid in Family Proceedings (Remuneration) Regulations 1991

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© Crown Copyright 1991

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1991 No. 2038

LEGAL AID AND ADVICE,

ENGLAND AND WALES

The Legal Aid in Family Proceedings (Remuneration) Regulations 1991

The Lord Chancellor, in exercise of the powers conferred on him by sections 2(5), (7), 34 and 43 of the Legal Aid Act 198^[1] and all other powers enabling him in that behalf, having had regard to the matters specified in section 34(9) and consulted the General Council of the Bar and the Law Society, and with the consent of the Treasury, hereby makes the following Regulations:—

Citation, commencement and transitional provisions
    1.—(1)  These Regulations may be cited as the Legal Aid in Family Proceedings (Remuneration) Regulations 1991 and shall come into force on 14th October 1991.

    (2)  Subject to paragraph (3), these Regulations shall apply to remuneration payable in respect of work done on or after 14th October 1991 and remuneration payable in respect of work done before that date shall be determined as if these Regulations had not been made.

    (3)  Schedule 2 shall apply to remuneration payable in respect of work done before 14th October 1991 as it applies to work done after that date.

Interpretation
    2.—(1)  In these Regulations, unless the context otherwise requires—

"the relevant authority" means the Area Director in the case of an assessment and the taxing officer in the case of a taxation, and "determination" shall mean an assessment or taxation as the case may be;


"care proceedings" means proceedings for an order under Parts IV or V of the Children Act 1989;^[2]


"fee-earner" means a solicitor, a legal executive or any clerk who regularly does work for which it is appropriate to make a direct charge to a client;


"the General Regulations" means the Civil Legal Aid (General) Regulations 1989^[3];


"prescribed family proceedings" means proceedings with respect to which rules may be made under section 40 of the Matrimonial and Family Proceedings Act 1984^[4], excluding care proceedings;


"the Rules" means the Matrimonial Causes (Costs) Rules 1988^[5].

    (2)  Unless the context otherwise requires—
 (a) expressions used in the Rules, the Family Proceedings Rules 1991^[6] and in the General Regulations shall have the same meanings as in those Rules or Regulations; and
 (b) any reference in these Regulations to a regulation, Part or Schedule by number means the regulation, Part or Schedule so numbered in these Regulations.

Remuneration
    3.—(1)  The sums to be allowed to legal representatives in connection with family proceedings shall be determined in accordance with these Regulations, Part Xll of the General Regulations, the Family Proceedings (Costs) Rules 1991^[7] and paragraphs 1(3), (4)(a) and (5) and paragraph 2(2)(a) of Part I of Schedule I to the Rules.

    (2)  Subject to the following paragraphs, the amounts to be allowed on determination under this regulation shall be—
 (a) in accordance with Schedule 1 where the certificate was issued in relation to care proceedings;
 (b) in accordance with Schedule 2 where the certificate was issued in relation to prescribed family proceedings, or, in relation to proceedings in a magistrates'court, any family proceedings other than care proceedings;
 (c) in accordance with RSC Order 62 or CCR Order 38 where the certificate was issued in relation to family proceedings not falling within sub-paragraphs (a) and (b);
 (d) in accordance with paragraph (2) of rule 8 of the Rules where the costs incurred relate to the kind of work to which that paragraph applies;
 (e) in accordance with paragraph 1(1) of Part I of Schedule 1 to the Rules where no provision is made in the Schedules to these Regulations for the kind of work to which the costs relate.

    (3)  Where a certificate relating to proceedings under paragraph 2(c) is extended to cover proceedings falling within sub-paragraphs (a) or (b), the amounts to be allowed on determination shall be in accordance with Schedule 1 or 2 as the case may be, or, if it is extended to cover proceedings falling within both sub-paragraphs, in accordance with Schedule 2.

    (4)  On determination the relevant authority—
 (a) in allowing costs under item 4 of Part I of Schedule 1, shall allow costs at the higher rate where the work was done by a fee-earner whose office is situated within legal aid area 1;
 (b) in allowing costs under item 4 of Part I of Schedule 2(a), shall allow costs at the higher rate where at the time when the relevant work was done the proceedings were conducted in the principal registry or in another court on the South-Eastern Circuit;
 (c) may allow a larger amount than that specified in column 2 or column 3, as the case may be, of Parts I, II, III and V of Schedules 1 and 2(a) where it appears to him reasonable to do so having regard to—
 (i) the exceptional competence with which the work was done, or
 (ii) the exceptional expedition with which the work was done, or
 (iii) any other exceptional circumstances of the case including, in the case of care proceedings, the fact that the solicitor was a member of the Law Society's Children Act panel,
but, without prejudice to regulation 109 of the General Regulations or rules 15 or 16 of the Rules, the relevant authority may in respect of any item in Part I, II, III or V of Schedule I or 2(a) allow a lower amount than that specified in column 2 or column 3 of that Part, as the case may be, where it appears to him reasonable to do so having regard to any failure on the part of the solicitor to provide timely preparation or advice, or for any similar reason.

    (5)  Without prejudice to regulation 109 of the Legal Aid General Regulations or rules 14 or 15 of the Rules, where a standard fee is specified in Part IV of Schedules 1 or 2(a) for work done by junior counsel that fee shall be allowed unless the relevant authority considers that it would be unreasonable to do so, in which case he shall allow such lesser or greater fee as may be reasonable—

Provided that the fee allowed shall not exceed any maximum fee which is specified unless the relevant authority considers that, owing to the time and labour expended by counsel or to any other special circumstance of the case, the maximum fee specified would not provide reasonable remuneration for some or all of the work done, in which case the fee to be allowed shall be in the discretion of the relevant authority.

    (6)  For the purpose of determining which of the brief fees provided by item 12 of Schedule I and item 13 of Schedule 2(a) should be allowed—
 (a) a one hour fee shall be allowed where the hearing lasts for one hour or less than one hour;
 (b) a half day fee shall be allowed where the hearing lasts for more than one hour and
 (i) begins and ends before the luncheon adjournment; or
 (ii) begins after the luncheon adjournment and ends before 5.30p.m.;
 (c) a full day fee shall be allowed where the hearing lasts for more than one hour and
 (i) begins before and ends after the luncheon adjournment but before 5.30p.m.; or
 (ii) begins after the luncheon adjournment and ends after 5.30p.m.; and
 (d) a more than a full day fee shall be allowed where the hearing
 (i) begins before the luncheon adjournment and ends after 5.30p.m. on the same day; or
 (ii) begins on one day and continues into a subsequent day.

    (7)  In exercising his discretion under this regulation or in relation to any provision of the Schedules where the amount of costs to be allowed is in his discretion, the relevant authority shall exercise his discretion in accordance with paragraph 1(2) of Part I of Schedule 1 to the Rules.

    (8)  Disbursements (other than counsel's fees) for which no allowance is made in Schedules 1 or 2(a) shall be determined and allowed, or disallowed, according to the general principles applicable to the taxation of costs in R.S.C. Order 62.

Mackay of Clashfern, C

Dated 6th September 1991
We Consent,

Sydney Chapman

Irvine Patrick

Two of the Lords Commissioners of Her Majesty's Treasury

9th September 1991

[1] 1988 c. 34; section 43 is an interpretation provision and is cited because of the meaning assigned to the word "regulations"; sections 2(7), 34 and 43 were amended by the Courts and Legal Services Act 1990 (c. 41); Schedule 18, paragraphs 60, 61 and 63. back

[2] 1989 c. 41. back

[3] S.I. 1989/339, as amended by S.I. 1991/524 and 1991/2036. back

[4] 1984 c. 42; section 40 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18 paragraph 50. back

[5] S.I. 1988/1328, as amended by S.I. 1989/385 and 1021, 1990/490 and 1991/530 ; as these Rules have effect as part of the Family Proceedings (Costs) Rules 1991 (S.I. 1991/1832) by virtue of rule 2(2) of those Rules. back

[6] S.I. 1991/1247. back

[7] S.I. 1991/1832. back

Explanatory Note