The Civil Legal Aid (General) Regulations 1989

• Citation: S.I. 1989/339
• Sections: 158

Section 1 Citation, commencement, revocations and transitional provisions

(1) These Regulations may be cited as the Civil Legal Aid (General) Regulations 1989 and shall come into force on 1st April 1989.

(2) The Regulations specified in Schedule 1 are hereby revoked.

(3) Where a review by an area committee under regulation 104, 105 or 106 relates to an assessment made before 1st June 1989, paragraphs (5) and (6) of regulation 105 shall not apply and the assisted person’s solicitor or counsel may, within 21 days of the area committee’s decision, appeal in writing to a committee appointed by the Board.

Section 2 Scope

These Regulations apply for the purposes of the provision of civil legal aid under Part IV of the Legal Aid Act 1988.

Section 3 Interpretation

(1) In these Regulations, unless the context otherwise requires,–

“ the Act ” means the Legal Aid Act 1988;

“affidavit of costs and resources” means an affidavit which includes the matters specified in Schedule 2 and which is sworn by a person in support of his application for an order under section 18 of the Act;

“appropriate area committee” means the area committee in whose area an application for a certificate has been granted or refused and includes an area committee to whose area an application has been transferred under these Regulations;

“area committee” means an area committee appointed by the Board in accordance with regulation 4;

“Area Director” means an Area Director appointed by the Board in accordance with regulation 4 and includes any person duly authorised to act on his behalf;

“assessment officer” means a person authorised by the Secretary of State to assess the disposable income, disposable capital and maximum contribution of the person concerned;

“assisted person” means a person in respect of whom a certificate issued under these Regulations is in force and, for the purposes of Part XI only, includes a person in respect of whom a certificate has been, but is no longer, in force;

“authorised summary proceedings” means proceedings in a magistrates' court for which legal aid is available by virtue of Part I of Schedule 2 to the Act;

“certificate” means a legal aid certificate issued in accordance with these Regulations (or any regulations revoked by these Regulations) and includes an amendment to a certificate issued under Part VII and, unless the context otherwise requires, an emergency certificate;

“contribution” means the contribution payable under section 16(1) of the Act in respect of the costs of representation;

“court” includes

in relation to proceedings tried or heard at first instance by a master or taxing master of the Supreme Court, a registrar of the Family Division of the High Court, a district registrar or the registrar of a county court, that master or registrar;

in relation to proceedings on appeal to the Court of Appeal, the registrar of civil appeals;

“disposable capital” and “disposable income” mean the amounts of capital and income available for the making of a contribution after capital and income have been computed in accordance with the Civil Legal Aid (Assessment of Resources) Regulations 1989 ;

“ EEC lawyer” has the same meaning as in the European Communities (Services of Lawyers) Order 1978 ;

“emergency certificate” means a certificate issued under Part III of these Regulations;

“fund” means the legal aid fund;

“legal aid” means representation under Part IV of the Act;

“legal aid area” has the meaning assigned by regulation 4(1);

“legal executive” means a fellow of the Institute of Legal Executives;

“master” in relation to an application for an order under section 18 of the Act in respect of proceedings in or on appeal from the Chancery or Queen’s Bench Division of the High Court, means a taxing master of the Supreme Court or a district registrar of the High Court; and in relation to such an application made in respect of proceedings in or on appeal from the Family Division of the High Court, means a registrar of the said Division or a district registrar of the High Court;

“matrimonial proceedings” means–

any proceedings with respect to which rules may be made under section 50 of the Matrimonial Causes Act 1973 ; or

any proceedings in a county court under section 17 of the Married Women’s Property Act 1882 or section 1 of or Schedule 1 to the Matrimonial Homes Act 1983 ; or

any proceedings under the Domestic Violence and Matrimonial Proceedings Act 1976 ;

“maximum contribution” means the amount assessed by the assessment officer as the maximum amount which an assisted person may be liable to pay on account of his contribution;

“patient” means a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983 , is incapable of managing and administering his property and affairs;

“standard basis” and “indemnity basis”, in relation to the taxation of costs, have the meanings assigned by Order 62, rule 12 of the Rules of the Supreme Court 1965 ;

“substantive certificate” means a certificate issued to replace an emergency certificate which is still in force.

(2) Any reference in these Regulations to a regulation or Schedule by number means the regulation or Schedule so numbered in these Regulations.

(3) References in these Regulations to costs shall, unless the context otherwise requires, be construed as including references to fees, charges, disbursements, expenses and remuneration.

Section 4 Area committees, Area Directors and legal aid areas

(1) The Board shall, for the purposes of administering the Act, appoint–

(a) area committees, and

(b) Area Directors,

in respect of areas (in these Regulations referred to as “legal aid areas”) to be specified by the Board.

(2) Area committees and Area Directors so appointed shall exercise functions respectively delegated to them by the Board or conferred on them by these Regulations.

Section 5 Powers exercisable by courts

Where the power to do any act or exercise any jurisdiction or discretion is conferred by any provision of these Regulations on a court, it may, unless it is exercisable only during the trial or hearing of the action, cause or matter, be exercised–

(a) in respect of proceedings in a county court or the Family Division of the High Court, by the registrar;

(b) in respect of proceedings in the Chancery or Queen’s Bench Division of the High Court, by a judge, master or district registrar;

(c) in respect of proceedings in the Court of Appeal, by a single judge of that Court or by the registrar of civil appeals;

(d) in respect of proceedings in the House of Lords, by the Clerk of the Parliaments;

(e) by any person who, under any enactment or rules of court, is capable of exercising the jurisdiction of the court in relation to the proceedings in question.

Section 6 Powers exercisable by Area Directors

(1) Where an area committee is required or entitled to perform any function under these Regulations, that function may, subject to paragraph (2), be performed on behalf of that committee by the Area Director.

(2) Paragraph (1) shall not empower an Area Director to determine an appeal under regulation 39.

Section 7 Computation of time

(1) Where, under these Regulations, an act is required to be done within a specified period after or from a specified date, the period of time so fixed starts immediately after that date.

(2) The period within which an act is required or authorised to be done under these Regulations may, if the Area Director thinks fit, be extended and any such period may be extended although the application for extension is not made until after the expiration of the period.

Section 8 Service of notices

(1) Where by virtue of these Regulations any document is required to be served (whether the expression “serve” or the expression “send” or “send by post” or any other expression is used) the document may be served–

(a) if the person to be served is acting in person, by delivering it to him personally or by delivering it at, or sending it by post to, his address for service or, if he has no address for service,–

(i) by delivering the document at his residence or by sending it by post to his last known residence, or

(ii) in the case of a proprietor of a business, by delivering the document at his place of business or by sending it by post to his last known place of business;

(b) if the person to be served is acting by a solicitor–

(i) by delivering the document at, or by sending it by post to, the solicitor’s address for service, or

(ii) where the solicitor’s address for service includes a numbered box at a document exchange, by leaving the document at that document exchange or at a document exchange which transmits documents daily to that document exchange.

(2) Any document which is left at a document exchange in accordance with paragraph (1)(b)(ii), shall, unless the contrary is proved, be deemed to have been served on the second day after the day on which it is left.

Section 9 Availability of documents to the court

Any document sent to a court office or registry or filed or exhibited under the provisions of these Regulations may, on request, be made available for the use of the court at any stage of the proceedings.

Section 10 Applications to be made to Area Directors

Any person who wishes to be granted legal aid for the purposes of proceedings may apply for a certificate–

(a) if resident in the United Kingdom, to any Area Director, or

(b) if resident elsewhere, to the Area Director of one of the legal aid areas nominated by the Board for this purpose.

Section 11 Form and lodgment of application

Every application–

(a) shall be made in writing on a form approved by the Board or in such other written form as the Area Director may accept; and

(b) shall be lodged with the Area Director.

Section 12 Contents of application

(1) Every application shall–

(a) state the name of the solicitor selected by the applicant to act for him;

(b) contain such information and be accompanied by such supporting documents (including any welfare report) as may be necessary to enable–

(i) the Area Director to determine the nature of the proceedings in respect of which legal aid is sought and whether it is reasonable that representation should be granted; and

(ii) the assessment officer to assess the disposable income, disposable capital and maximum contribution of the applicant.

(2) An applicant for legal aid in connection with authorised summary proceedings may, with a view to expediting the issue to him of a certificate, lodge with the Area Director (when he applies for a certificate or at any time before it is issued) an undertaking on a form approved by the Board to pay any contribution that may be assessed under the Civil Legal Aid (Assessment of Resources) Regulations 1989.

(3) An applicant shall, if required to do so for the purpose of providing additional material, supply such further information or documents as may be required or attend for an interview and, for this purpose, “applicant” includes a person to whom a certificate has been issued on a form of undertaking given under paragraph (2).

Section 13 Applications by persons resident outside United Kingdom

(1) Subject to paragraph (2), where the applicant resides outside the United Kingdom and cannot be present in England or Wales while his application is considered, his application shall be

(a) written in English or in French; and

(b) except where the applicant is a member of Her Majesty’s armed forces, sworn–

(i) if the applicant resides within the Commonwealth or the Republic of Ireland, before any justice of the peace or magistrate or any person for the time being authorised by law in the place where he resides to administer an oath for any judicial or other legal purpose, or

(ii) if the applicant resides elsewhere, before a British consular officer or any other person for the time being authorised to exercise the functions of such an officer or having authority to administer an oath in that place; and

(c) accompanied by a statement in writing, signed by some responsible person who has knowledge of the facts, certifying that part of the application which relates to the applicant’s disposable income and disposable capital.

(2) The requirements of paragraph (1) may be waived by the Area Director where compliance with them would cause serious difficulty, inconvenience or delay and the application otherwise satisfies the requirements of regulations 11 and 12.

Section 14 Child Abduction and Custody Act 1985

(1) A person whose application under the Hague Convention or the European Convention has been submitted to the Central Authority in England and Wales pursuant to section 3(2) or section 14(2) of the Child Abduction and Custody Act 1985 and on whose behalf a solicitor in England and Wales has been instructed in connection with the application–

(a) shall be eligible to receive legal aid whether or not his financial resources are such as to make him eligible to receive it under regulations made under the Legal Aid Act 1988;

(b) shall not be refused legal aid by virtue of subsections (2) and (3) of section 15 of the said Act of 1988; and

(c) shall not be required to pay a contribution to the legal aid fund;

and these Regulations (with the exception of those provisions relating to assessment of disposable income and capital, eligibility on the merits and payment of contribution) shall apply accordingly.

(2) In this regulation the “Hague Convention” means the convention defined in section 1(1) of the Child Abduction and Custody Act 1985 and the “European Convention” means the convention defined in section 12(1) of that Act.

Section 15 Registration of certain foreign orders and judgments

(1) This regulation applies to any person who

(a) appeals to a magistrates' court against the registration of or the refusal to register a maintenance order made in a Hague Convention country pursuant to the Maintenance Orders (Reciprocal Enforcement) Act 1972 ; or

(b) applies for the registration of a judgment under section 4 of the Civil Jurisdiction and Judgments Act 1982 .

(2) Subject to paragraph (3), a person to whom this regulation applies–

(a) shall be eligible to receive legal aid whether or not his financial resources are such as to make him eligible to receive it under regulations made under the Legal Aid Act 1988;

(b) shall not be refused legal aid by virtue of subsections (2) and (3) of section 15 of the said Act of 1988;

(c) shall not be required to pay a contribution to the legal aid fund,

and these Regulations (with the exception of those provisions relating to assessment of disposable income and capital, eligibility on the merits and payment of contribution) shall apply accordingly.

(3) A person shall not be given legal aid under this regulation in respect of any appeal or application as is mentioned in paragraph (1) unless he benefited from complete or partial legal aid or exemption from costs or expenses in the country in which the maintenance order was made or the judgment was given.

(4) In this regulation, “Hague Convention country” has the same meaning as in the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1979 and “the Maintenance Orders (Reciprocal Enforcement) Act 1972” means that Act as applied with such exceptions, adaptations and modifications as are specified in the said 1979 Order.

Section 16 Application on behalf of minors and patients

(1) Subject to paragraph (5), an application for legal aid for a minor or patient shall be made on his behalf by a person of full age and capacity and,

(a) where the application relates to proceedings which are required by rules of court to be brought or defended by a next friend or guardian ad litem, the person making the application shall be the next friend or guardian ad litem, or,

(b) where the application relates to proceedings which have not actually begun, the person who, subject to any order of the court, intends to act in either of those capacities when the proceedings begin, shall make the application.

(2) Except where an application is made by the Official Solicitor, the Area Director shall not issue a certificate applied for by a person on behalf of a minor or patient unless that person has signed an undertaking to pay to the Board (if required to do so) any sums which, by virtue of any provision of the Act or of these Regulations, the Area Director may require an assisted person of full age and capacity to pay upon the issue or during the currency or upon the discharge or revocation of a certificate.

(3) Any certificate issued to a minor or patient shall be in his name, stating the name of the person who has applied for it on his behalf.

(4) In any matter relating to the issue, amendment, revocation or discharge of a certificate issued to a minor or patient, and in any other matter which may arise between an assisted person who is a minor or patient and the Area Director, the person who is named in the certificate as the next friend or guardian ad litem of the minor or patient shall be treated for all purposes (including the receipt of notices) as the agent of the minor or patient.

(5) An Area Director may, where the circumstances appear to make it desirable, waive all or any of the requirements of the preceding paragraphs of this regulation.

Section 17 Power to transfer application to another area office

If it appears to an Area Director that an application could, without prejudice to the applicant, be more conveniently or appropriately dealt with in another area office, the papers relating to the application shall be transferred to that other office.

Section 18 Reference to the assessment officer for assessment of resources

(1) Except where he has previously refused the application, the Area Director shall refer to the assessment officer so much of it as is relevant to the assessment of the applicant’s disposable income and disposable capital; and (subject to paragraph (2) and regulation 21) no application shall be approved until the assessment officer has assessed the applicant’s disposable income, disposable capital and maximum contribution in accordance with the Civil Legal Aid (Assessment of Resources) Regulations 1989 .

(2) Where an Area Director approves an application relating to proceedings–

(a) in the House of Lords or on appeal from a magistrates' court in any action, cause or matter in which the applicant was an assisted person in the court below; or

(b) by way of a new trial ordered by a court in any action, cause or matter in which the applicant was an assisted person;he shall not require the assessment officer to re-assess the assisted person’s disposable income and disposable capital.

Section 19 Application for emergency certificate

(1) Any person who desires legal aid as a matter of urgency may apply to an Area Director for an emergency certificate on a form approved by the Board or in such other manner as the Area Director may accept as sufficient in the circumstances of the case.

(2) Subject to paragraph (3), an application for an emergency certificate shall contain such information and be accompanied by such documents as may be necessary to enable the Area Director to determine the nature of the proceedings for which legal aid is sought and the circumstances in which it is required and whether–

(a) the applicant is likely to fulfil the conditions under which legal aid may be granted under the Act and these Regulations; and

(b) it is in the interests of justice that the applicant should, as a matter of urgency, be granted legal aid;

and the applicant shall furnish such additional information and documents (if any) as may be sufficient to constitute an application for a certificate under Part II of these Regulations.

(3) If it appears to the Area Director that the applicant cannot at the time of making the application reasonably furnish the information required under paragraph (2), or any part of it, that Area Director shall nevertheless have the power to issue an emergency certificate subject to such conditions as to the furnishing of additional information as he thinks fit.

Section 20 Refusal of emergency certificate

An application for an emergency certificate may be refused–

(a) on one of the grounds on which a substantive certificate may be refused under regulation 34; or

(b) on the ground that the applicant is unlikely to fulfil the conditions under which legal aid may be granted; or

(c) on the ground that it is not in the interests of justice that legal aid be granted as a matter of urgency.

Section 21 Issue and effect of emergency certificate

(1) An Area Director shall have power to approve an application made under regulation 19 and to issue an emergency certificate without reference to the assessment officer.

(2) An emergency certificate shall not be issued in respect of authorised summary proceedings.

(3) Where an Area Director issues an emergency certificate, he shall send the emergency certificate (together with a copy) to the solicitor selected by the applicant, and a copy of the certificate to the applicant.

(4) An emergency certificate shall have the same effect in all respects as a substantive certificate and any person holding an emergency certificate shall, while it is in force, be deemed for the purposes of the proceedings to which the emergency certificate relates to be an assisted person.

Section 22 Duration of emergency certificate

An emergency certificate shall remain in force until–

(a) it is discharged or revoked in accordance with Part X of these Regulations; or

(b) it is merged in a substantive certificate under regulation 23; or

(c) the expiry of any period (including any extension of that period granted under regulation 24(1)) allowed for the duration of the emergency certificate.

Section 23 Merger in substantive certificate

(1) Where a substantive certificate is issued, the emergency certificate shall merge in the substantive certificate and the substantive certificate shall take effect from the date upon which the emergency certificate was issued in respect of the proceedings specified in the emergency certificate.

(2) Where an emergency certificate is merged in a substantive certificate, the substantive certificate shall state–

(a) the date of issue of the emergency certificate, and

(b) that the emergency certificate has been continuously in force from that date until the date of the substantive certificate.

Section 24 Extension and expiry of emergency certificate

(1) The Area Director (whose decision shall be final) may extend the period allowed for the duration of an emergency certificate where–

(a) the applicant is offered a substantive certificate in respect of the proceedings to which the emergency certificate relates and either fails to signify his acceptance or appeals against the terms of the offer; or

(b) the application for a substantive certificate in respect of the proceedings to which the emergency certificate relates has been refused and either notice of appeal has been given to the appropriate area committee within the time limits laid down by regulation 36 or the time limit for doing so has not expired; or

(c) there are exceptional circumstances.

(2) Where an emergency certificate is extended under paragraph (1)(a) or (b), no further work may be done or steps taken under the certificate.

Section 25 Notification of extension of emergency certificate

(1) Where an emergency certificate is extended, the Area Director shall

(a) forthwith issue a notice to that effect;

(b) send the notice (together with a copy) to the solicitor acting for the person to whom the emergency certificate was issued; and

(c) send a copy of the notice to the person to whom the emergency certificate was issued.

(2) It shall be the duty of the solicitor to notify forthwith any counsel whom he may have instructed that the certificate has been extended.

(3) A solicitor who receives notice that an emergency certificate has been extended under regulation 24 shall, if proceedings have begun or otherwise upon their commencement,

(a) send a copy of the notice by post to the appropriate court office or registry, and

(b) serve notice of the fact upon any other persons who are parties to the proceedings,

and, if any other person becomes a party to the proceedings, serve a similar notice upon that person.

Section 26 Power to notify other parties of application

(1) On receiving an application for a certificate, the Area Director may, if he thinks fit,–

(a) notify any party to the proceedings in respect of which the application is made; and

(b) ask that party whether he is willing to delay taking any further step in, or in relation to, the proceedings until the application has been determined.

(2) When the Area Director has determined the application, he shall so inform any party notified under this regulation.

Section 27 Financial eligibility

(1) Where the assessment officer assesses that an applicant has disposable income of an amount which makes him ineligible for legal aid, the Area Director shall refuse the application.

(2) Where the assessment officer assesses that an applicant, having disposable income of an amount which makes him eligible for legal aid, has disposable capital of an amount which renders him liable to be refused legal aid, the Area Director shall refuse the application if it appears to him that the probable costs of the applicant in the proceedings in respect of which the application was made would not exceed the contribution payable by the applicant.

Section 28 Eligibility on the merits

Without prejudice to the generality of section 15(2) or (3) of the Act, an application for a certificate shall only be approved after the Area Director has considered all the questions of fact or law arising in the action, cause or matter to which the application relates and the circumstances in which the application was made.

Section 29 Refusal where advantage trivial or on account of nature of proceedings

Without prejudice to regulations 28 and 32, an application may be refused where it appears to the Area Director that–

(a) only a trivial advantage would be gained by the applicant from the proceedings to which the application relates, or

(b) on account of the nature of the proceedings a solicitor would not ordinarily be employed.

Section 30 Refusal where other rights or facilities available

(1) Without prejudice to regulation 28, an application may be refused where it appears to the Area Director that–

(a) the applicant has available to him rights or facilities which make it unnecessary for him to obtain legal aid; or

(b) the applicant has a reasonable expectation of obtaining financial or other help from a body of which he is a member,

and that he has failed to take all reasonable steps to enforce or obtain such rights, facilities or help (including permitting the Area Director to take those steps on his behalf).

(2) Where it appears that the applicant has a right to be indemnified against expenses incurred in connection with any proceedings, it shall not, for the purposes of paragraph (1), be deemed to be a failure to take reasonable steps if he has not taken proceedings to enforce that right, whether for a declaration as to that right or otherwise.

Section 31 Determination of contribution

(1) The Area Director shall, when determining an application, also determine the sums for the time being payable on account of the applicant’s contribution and, in so doing, shall have regard to the probable cost of the proceedings.

(2) Where the probable cost of the proceedings exceeds any maximum contribution which has been assessed, the Area Director shall determine the maximum contribution as the sum payable on account of the applicant’s contribution.

(3) Save as otherwise provided by these Regulations, the sum determined under paragraph (1) shall not exceed the maximum contribution which has been assessed.

Section 32 Proceedings in which others have an interest

(1) When determining an application, the Area Director shall consider whether it is reasonable and proper for persons concerned jointly with or having the same interest as the applicant to defray so much of the costs as would be payable from the fund in respect of the proceedings if a certificate were issued.

(2) In determining an application made by, or on behalf of, a person in connection with an action, cause or matter in which–

(a) numerous persons have the same interest, and

(b) in accordance with rules of court, one or more persons may sue or be sued, or may be authorised by a court to defend any such action, cause or matter on behalf of or for the benefit of all persons so interested,

the Area Director shall consider whether the rights of the applicant would be substantially prejudiced by the refusal of his application.

(3) Where an application has been approved and the Area Director considers that it is reasonable that persons concerned jointly with or having the same interest as the applicant should contribute to the cost of the proceedings, he shall add the amount which would be payable by such persons to the sums (if any) payable by the applicant under regulation 31 and shall so notify him under regulation 43(2).

(4) The Area Director may subsequently redetermine the amount of any additional sums payable under paragraph (3) where he is satisfied that the applicant has, without success, taken all reasonable steps (including permitting the Area Director to take those steps on his behalf) to obtain such payment.

Section 33 Application in representative, fiduciary or official capacity

Where an application is made in a representative, fiduciary or official capacity, the Area Director–

(a) shall take into account the value of any property or estate or the amount of any fund out of which the applicant is entitled to be idemnified and the financial resources of any persons (including the applicant if appropriate) who might benefit from the proceedings; and

(b) may (without prejudice to regulation 28) either–

(i) approve the application, subject to the payment from the property or resources specified in sub-paragraph (a) of any sums which he may in his discretion determine, or

(ii) refuse the application, if he concludes that to do so would not cause hardship.

Section 34 Notification of refusal

(1) Where an application for a certificate is refused on one or more of the following grounds, namely, that

(a) the assessment officer has assessed that the applicant has disposable income which makes him ineligible for legal aid; or

(b) the assessment officer has assessed that the applicant, having disposable income of an amount which makes him eligible for legal aid, has disposable capital of an amount which renders him liable to be refused legal aid and it appears to the Area Director that, without legal aid, the probable costs to the applicant of the proceedings in respect of which the application was made would not exceed the sums payable by the applicant on account of his contribution; or

(c) the proceedings to which the application relates are not proceedings for which legal aid may be given; or

(d) the applicant has not shown that he has reasonable grounds for taking, defending or being a party to the proceedings; or

(e) it appears unreasonable that the applicant should receive legal aid in the particular circumstances of the case,

the Area Director shall notify the applicant of the grounds on which the application has been refused and inform him of the circumstances in which he may appeal to the appropriate area committee for the decision to be reviewed.

(2) Where an application is refused on either of the grounds specified in sub-paragraphs (d) and (e) of paragraph (1), the notification given under that paragraph shall include a brief statement of the reasons why that ground applies to the applicant’s case.

Section 35 Right of appeal against refusal

(1) Where an Area Director refuses an application for a certificate or an applicant is dissatisfied with the terms upon which the Area Director would be prepared to issue it, the applicant may, subject to paragraph (2), appeal to the appropriate area committee.

(2) No appeal shall lie to an area committee from–

(a) an assessment of the assessment officer, or

(b) any decision by an Area Director as to the sums payable on account of the applicant’s contribution or the method by which they shall be paid except a decision as to sums payable under regulation 32(3) or 33.

Section 36 Time and form of appeal

Every appeal shall be brought by giving to the appropriate area committee, within 14 days of the date of notice of refusal of a certificate or of the terms upon which a certificate would be issued (or such longer period as the appropriate area committee may allow), notice of appeal in writing either on a form approved by the Board or in such other written form as the Area Director may accept as sufficient in the circumstances of the case.

Section 37 Nature of appeal

Every appeal shall be by way of reconsideration of the application.

Section 38 Representation at appeal or other final application

(1) Upon an appeal the appellant may–

(a) furnish further statements, whether oral or in writing, in support of his application; and

(b) conduct the appeal himself, with or without the assistance of any person whom he may appoint for the purpose, or be represented by counsel or a solicitor or legal executive.

(2) With any necessary modifications, paragraph (1)(a) shall apply to any appeal to an area committee and, subject to regulation 58(3), paragraph (1)(b) shall apply to any appeal to an area committee on which the committee finally determines the applicant’s right to receive legal aid.

Section 39 Determination of appeal

(1) The area committee shall determine the appeal in such manner as seems to it to be just and, without prejudice to the generality of the foregoing, may–

(a) dismiss the appeal; or

(b) direct the Area Director to offer a certificate subject to such terms and conditions as the area committee thinks fit;

(c) direct the Area Director to settle terms and conditions on which a certificate may be offered; or

(d) refer the matter, or any part of it, back to the Area Director for his determination or report.

(2) Any decision of an area committee with regard to an appeal shall be final, and it shall give notice of its decision, and the reasons for it, to the appellant and to any solicitor acting for him on a form approved by the Board.

Section 40 Repeated refusal of certificates

(1) Where a person has applied for and been refused a certificate on three separate occasions and it appears to the Area Director to whom such person applies that his conduct may amount to an abuse of the facilities provided by the Act, then the Area Director may report the matter to the appropriate area committee.

(2) If a report under paragraph (1) has been made, the area committee may–

(a) enquire whether any other area office has received an application from the person named in the report;

(b) call for a report as to the circumstances of any other such application; and

(c) if it considers that the person named in the report has abused the facilities provided by the Act, report thereon to the Board, making such recommendations as seem to the area committee to be just.

Section 41 Power to make prohibitory directions

(1) The Board, on receipt of a report made under regulation 40(2)(c), shall give the person named in it an opportunity of making (either by himself or by some other person acting on his behalf) representations in writing on the matter, and shall make such other enquiries as seem to be necessary; and, if they are satisfied that his conduct has amounted to an abuse of the facilities provided by the Act, may make a direction (in this regulation referred to as a “prohibitory direction”) that no consideration shall, for a period not exceeding five years, be given by any Area Director either–

(a) to any future application by that person for a certificate with regard to any particular matter; or

(b) in exceptional circumstances, to any future application by him whatsoever.

(2) The Board may in its discretion–

(a) include within the terms of any prohibitory direction any receiver, next friend or guardian ad litem who applies for a certificate on behalf of the person referred to in the prohibitory direction; and

(b) at any time vary or revoke any prohibitory direction in whole or in part.

(3) Where the Board makes a prohibitory direction, it shall inform the Lord Chancellor and shall, if so requested, give him its reasons for making it.

Section 42 Issue of certificate where no contribution may be payable

Where an application is approved relating to proceedings where an undertaking under regulation 12(2) has been given or where no contribution is (for the time being) payable, the Area Director shall–

(a) issue a certificate;

(b) send the certificate (together with a copy) to the solicitor selected by the applicant; and

(c) send a copy of the certificate to the applicant together with a notice drawing the applicant’s attention to the provisions of sections 16(6) and 17(1) of the Act.

Section 43 Offer of certificate where contribution payable

(1) Where an application is approved for any proceedings where a contribution will be payable, the Area Director shall require–

(a) any sums payable out of capital to be paid forthwith if the sum is readily available or, if it is not, by such time as seems to him reasonable in all the circumstances; and

(b) any sums payable out of income to be paid by such instalments as he may direct.

(2) The Area Director shall notify the applicant–

(a) of the sums payable under regulation 31; and

(b) of the terms upon which a certificate will be issued to him;

and draw to his attention the provisions of sections 16(1) and (6) and 17(1) of the Act.

Section 44 Undertaking to account for sums received from third parties

Where the applicant–

(a) appears to be a member of an organisation or body which might reasonably be expected to give him financial assistance in meeting the cost of the proceedings for which the applicant has applied for legal aid; and

(b) does not appear to have any right to be indemnified by that organisation or body against expenses incurred in connection with those proceedings,

the Area Director shall require the applicant, as a term upon which the certificate will be issued, to sign an undertaking to pay to the Board (in addition to any sums payable under regulations 31 and 32) any sum which he receives from that organisation or body on account of the cost of those proceedings.

Section 45 Acceptance and issue of certificate where contribution payable

(1) An applicant who desires that a certificate should be issued to him on the terms notified to him by an Area Director shall, within 28 days of being so notified,–

(a) signify his acceptance of those terms on a form approved by the Board and lodge it with the Area Director; and

(b) if those terms require the payment of any sums of money, give an undertaking, on a form approved by the Board, to pay those sums by the method stated in the terms and, if any sum is required to be paid before the certificate is issued, make that payment accordingly.

(2) When an applicant has complied with so many of the requirements of paragraph (1) as are relevant to his case, the Area Director shall issue a certificate and send it to the solicitor selected by the applicant.

(3) Where an application is approved relating to authorised summary proceedings in which an undertaking under regulation 12(2) has been given, the Area Director may defer issuing a certificate until a contribution has been paid.

Section 46 Scope of certificates

(1) A certificate may be issued in respect of the whole or part of proceedings and may be extended to cover appellate proceedings other than those mentioned in paragraph (2).

(2) A certificate shall not be extended to cover proceedings in the House of Lords or on appeal from a magistrates' court.

(3) A certificate shall not relate to more than one action, cause or matter exept in the case of–

(a) authorised summary proceedings; or

(b) matrimonial proceedings; or

(c) proceedings under the Guardianship of Minors Act 1971 or the Guardianship Act 1973 and proceedings under the Domestic Violence and Matrimonial Proceedings Act 1976 ;

(d) an application for a grant of representation which is necessary to enable the action, which is the subject matter of the certificate, to be brought;

(e) an application under section 33 of the Supreme Court Act 1981 or section 52 of the County Courts Act 1984 and subsequent court proceedings; or

(f) proceedings which, under the Act, may be taken to enforce or give effect to any order or agreement made in the proceedings to which the certificate relates; and, for the purposes of this sub-paragraph, proceedings to enforce or give effect to an agreement or order shall include proceedings in bankruptcy or to wind-up a company.

Section 47 Certificates to specify parties to proceedings

A certificate other than one relating to matrimonial proceedings or authorised summary proceedings shall specify the parties to the proceedings in respect of which it is issued.

Section 48 Power to restrict costs allowable to distant solicitor

(1) Where the solicitor selected by the applicant to whom a certificate is issued carries on his practice at a place which is so far away from where his services will be required in acting under the certificate that his selection will result in significantly greater expense to the fund than would have been incurred if the applicant had selected another solicitor, the certificate may provide that the solicitor shall not be entitled to payment in respect of any additional costs or disbursements incurred by reason of the fact that he does not carry on his practice at or near the place where his services are required in acting under the certificate.

(2) Where a certificate includes a provision under paragraph (1), payment of such additional costs or disbursements shall not be allowed on determination of the costs.

Section 49 Effect of certificates

Any document purporting to be a certificate issued in accordance with these Regulations shall, until the contrary is proved, be deemed to be a valid certificate issued to the person named in it and for the purposes there set out and shall be received in evidence without further proof.

Section 50 Notification of issue of certificates

(1) Whenever an assisted person becomes a party to proceedings, or a party to proceedings becomes an assisted person, his solicitor shall forthwith–

(a) serve all other parties to the proceedings with notice of the issue of a certificate; and

(b) if at any time thereafter any other person becomes a party to the proceedings, forthwith serve a similar notice on that party.

(2) Copies of the notices referred to in paragraph (1) shall form part of the papers for the use of the court in the proceedings.

(3) Where an assisted person’s solicitor–

(a) commences any proceedings for the assisted person in a county court; or

(b) commences proceedings in accordance with Order 112, rule 3 or 4 of the Rules of the Supreme Court 1965 or rule 101 or 103 of the Matrimonial Causes Rules 1977 ;

and at the same time files a copy of the notice to be served in accordance with paragraph (1), a copy of that notice shall be annexed to the originating process for service.

(4) A solicitor who receives a certificate from an Area Director shall, if proceedings have begun, or otherwise upon their commencement, send a copy of it by post to the appropriate court office or registry.

(5) Paragraphs (1) to (4) shall not apply to authorised summary proceedings and, where an assisted person is a party to such proceedings, his solicitor shall, before or at the first hearing that takes place after the certificate has been issued, file the certificate with the clerk to the justices.