The Community Legal Service (Funding) (Amendment No.2) Order 2011

• Citation: S.I. 2011/2066
• Sections: 19

Section 1 Citation, commencement and interpretation

This Order may be cited as the Community Legal Service (Funding) (Amendment No.2) Order 2011.

Section 2 Citation, commencement and interpretation

This Order comes into force—

(a) in relation to this article, articles 1, 3, 4, 5, 6(c), 7, 8, 11, 12, 13, 14 and article 9 in so far as it relates to Parts 4 and 5 of Schedule 1 to the 2007 Order , on 3rd October 2011;

(b) in relation to article 6(a) and (b) and article 9 in so far as it relates to Parts 1, 2 and 3 of Schedule 1 to the 2007 Order—

(i) where funded services are provided under the 2010 Standard Civil Contract on 3rd October 2011;

(ii) where funded services are provided under the Unified Contract on 1st February 2012;

(c) in relation to article 9, in so far as it relates to Schedule 2 to the 2007 Order, and article 10 on 1st February 2012.

Section 3 Citation, commencement and interpretation

In this Order, “the 2007 Order” means the Community Legal Service (Funding) Order 2007 and words and phrases used in this Order have the same meaning as in the 2007 Order.

Section 4 Amendments to the 2007 Order

The 2007 Order is amended as follows.

Section 5 Amendments to the 2007 Order

In article 3(1), in the definition of “family proceedings”, after paragraph (i) insert—

but excludes proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 and the Trusts of Land and Appointment of Trustees Act 1996 ;

Section 6 Amendments to the 2007 Order

In article 5(2)—

(a) in sub-paragraph (b)(i) for “200% for non family proceedings” substitute “100% for proceedings”;

(b) in sub-paragraph (b)(ii) for “100%” substitute “50%”; and

(c) after sub-paragraph (d) insert—

(e) must—

(i) provide for payment of expert services of a type listed in Section 1 of Schedule 6 at the fixed fees or at rates not exceeding the rates set out in that section;

(ii) provide that the Commission may increase the fixed fees or rates set out in Section 1 of Schedule 6 if it considers it reasonable to do so due to exceptional circumstances as defined in Section 2 of Schedule 6; and

(iii) include provisions relating to the payment of expert services that accord with those set out in paragraphs 1 and 3 to 5 of Section 2 of Schedule 6.

Section 7 Amendments to the 2007 Order

In article 5A(3), omit sub-paragraphs (b) and (c).

Section 8 Amendments to the 2007 Order

After article 5B insert—

Remuneration of barristers in independent practice providing funded services under a certificate in civil (non-family) proceedings

(5C)

(1) This article applies where—

(a) funded services are provided by a barrister in independent practice under a certificate; and

(b) the funded services are not advocacy services in family proceedings to which article 5A applies .

(2) Subject to paragraph (3), the Commission must fund payments to a barrister in independent practice at the hourly rates set out in Schedule 7.

(3) The Commission may increase the hourly rate for junior counsel in the county court if it considers it reasonable to do so.

(4) For the purposes of this article and Schedule 7—

(a) “junior counsel” means a barrister in independent practice of less than 10 years call; and

(b) “senior counsel” means a barrister in independent practice of 10 years call or more.

Section 9 Amendments to the 2007 Order

For Schedules 1 and 2 to the 2007 Order substitute Schedules 1 and 2 set out in Schedule 1 to this Order.

Section 10 Amendments to the 2007 Order

For paragraph 77 of Schedule 4 to the 2007 Order substitute—

(77)

(1) This paragraph applies where advocacy services within article 5A(3) are provided by counsel.

(2) There shall be determined on cost assessment, a figure having regard to—

(i) the work reasonably done by counsel;

(ii) the remuneration that would have been payable had the services been remunerated in accordance with paragraph 76 as it applied before 1 st February 2012; and

(iii) the remuneration that would have been payable had the services been remunerated under the provisions of the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001 .

(4) The remuneration payable to counsel is the figure determined on cost assessment in accordance with paragraph (2) reduced by ten percent.

Section 11 Amendments to the 2007 Order

In Schedule 5 to the 2007 Order, omit paragraphs 4 to 6.

Section 12 Amendments to the 2007 Order

After Schedule 5 to the 2007 Order, insert Schedules 6 and 7 set out in Schedule 2 to this Order.

Section 13 Transitional Provisions

(1) Where funded services are provided under a certificate and—

(a) the application for the certificate is signed before the date this Order comes into force in relation to those funded services, regardless of whether the scope of the certificate is extended on or after that date; and

(b) the application is received by the Commission before the expiry of 7 days after the date this Order comes into force in relation to those funded services,

the 2007 Order continues to have effect as if this Order had not been made.

Section 14 Transitional Provisions

Where funded services are provided otherwise than under a certificate and—

(a) an application for funded services is made before the date this Order comes into force in relation to those services; or

(b) a client was in receipt of Legal Help before the date this Order comes into force in relation to that Legal Help and the funded services are extended on or after that date to include Help at Court or Legal Representation,

the 2007 Order continues to have effect as if this Order had not been made.

Section 1 Payment of expert services of a type not listed in Section 1

(1) This paragraph applies where the Commission receives a request for funding of an expert service of a type not listed in Section 1.

(2) In considering the rate at which to fund the expert service the Commission—

(a) must have regard to the rates set out in Section 1; and

(b) may require a number of quotes for provision of the service to be submitted to the Commission.

Section 2 Meaning of exceptional circumstances in article 5(2)(e)(ii)

For the purposes of article 5(2)(e)(ii), exceptional circumstances are where the expert’s evidence is key to the client’s case and either—

(a) the complexity of the material is such that an expert with a high level of seniority is required; or

(b) the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.

Section 3 General provisions relating to experts

(1) The costs and expenses relating to experts listed at sub-paragraph (2) are not payable by the Commission as disbursements.

(2) The costs and expenses are—

(a) any administration fee charged by an expert, including (but not limited to)—

(i) a fee in respect of office space or provision of a consultation room;

(ii) a fee in respect of administrative support services, such as typing services;

(iii) a fee in respect of courier services; and

(iv) a subsistence fee;

(b) any cancellation fee charged by an expert, where the notice of cancellation was given to the expert more than 72 hours before the relevant hearing or appointment.

Section 4 General provisions relating to experts

The maximum amount that the Commission may pay as a disbursement in respect of an expert’s vehicle mileage is £0.45 per mile.

Section 5 General provisions relating to experts

The maximum amount that the Commission may pay as a disbursement in respect of an expert’s travel time is £40.00 per hour.