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Legal Aid, Advice and Assistance (Northern Ireland) Order 1981

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Legal advice and assistanceF17F18N.I.

F17Order repealed (prosp.) by Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)), arts. 1(2), 49(2), Sch. 5 and the repeal being partly in operation, as to which see individual Articles

F18functions transfered by SI 1982/159

Non-textual amendments applied to the whole Legislation can be found in the Introduction

Persons eligible for advice and assistanceN.I.

3.—(1) Advice and assistance to which this Article applies shall, subject to and in accordance with the following provisions of this Part, be available for any person if—

(a)his disposable income does not exceed[F1£234] a week; or

(b)he is (directly or indirectly) in receipt of[F2 income support[F3, an income-based jobseeker's allowance (payable under the Jobseekers (Northern Ireland) Order 1995) or an income-related allowance under Part 1 of the Welfare Reform Act (Northern Ireland) 2007 (employment and support allowance),]][F4 or

(c)he is in receipt of a guarantee credit under the State Pension Credit Act (Northern Ireland) 2002,]

and [F5in any case] his disposable capital does not exceed[F6 £1,000][F7 £3,000].

(2) Regulations may provide that there shall be substituted—

(a)for the weekly sum specified in paragraph (1) such other weekly sum as may be prescribed;

(b)for the capital sum so specified, such other capital sum as may be prescribed.

[F8(3) Regulations made by virtue of paragraph (2)(b) may provide for the substitution of different capital sums in relation to—

(a)advice and assistance other than assistance by way of representation; and

(b)assistance by way of representation.]

Scope and general conditions of advice and assistanceN.I.

4.—(1) Subject to paragraph (2) and Article 5 and to any prescribed exceptions and conditions, Article 3 applies to any oral or written advice given by a solicitor or, if and so far as may be necessary, counsel—

(a)on the application of Northern Ireland law to any particular circumstances which have arisen in relation to the person seeking the advice; and

(b)as to any steps which that person might appropriately take (whether by way of settling any claim, bringing or defending any proceedings, making an agreement, will or other instrument or transaction, obtaining further legal or other advice or assistance, or otherwise) having regard to the application of Northern Ireland law to those circumstances;

and applies to any assistance given by a solicitor or, if and so far as may be necessary, by counsel to any person in taking any such steps as are mentioned in sub-paragraph ( b), whether the assistance is given by taking any such steps on his behalf or by assisting him in taking them on his own behalf.

(2) Notwithstanding anything in paragraph (1), Article 3 does not apply to any advice or asistance given to a person in connection with any proceedings before a court or tribunal—

(a)at a time when a civil aid certificate issued to him in connection with those proceedings is in force;F9F10. . .

[F10(aa)at a time when—

(i)the Commission has informed him that legal aid is available to him in connection with those proceedings under a direction given under Article 10A(1)(a) or an authorisation given under Article 10A(2)(a); or

(ii)the Lord Chancellor has informed him that legal aid is available to him in connection with those proceedings under an authorisation given under Article 10A(2)(b).

and he has not been informed by the Commission or the Lord Chancellor that such legal aid has ceased to be so available; or.]

(b)in the case of criminal proceedings, at a time when a criminal aid certificate made in respect of him for the purposes of those proceedings is in force.

(3) Save as expressly provided by this Part or by regulations made thereunder—

(a)the fact that the services of counsel or a solicitor are given by way of advice or assistance shall not affect the relationship between or rights of counsel, solicitor and client, or any privilege arising out of such relationship; and

(b)the rights conferred by this Part on a person receiving advice or assistance shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of any court or tribunal is normally exercised.

(4) In this Article—

  • “civil aid certificate” means a certificate required in accordance with regulations made under Article 22 to be obtained as a condition of entitlement to legal aid;

  • “criminal aid certificate” means a certificate under Article 28(1), 29(2) or 30(3).

Representation in proceedingsN.I.

5.—(1) In this Part “assistance by way of representation” means any assistance given to a person by taking on his behalf any step in the institution or conduct of any proceedings before a court or tribunal, or of any proceedings in connection with a statutory inquiry, whether by representing him in those proceedings or by otherwise taking any step on his behalf (as distinct from assisting him in taking such a step on his own behalf).

(2) Without prejudice to Article 4(2) and subject to any prescribed exceptions, Article 3 does not apply to any assistance by way of representation unless it is approved by an appropriate authority in accordance with regulations made for the purposes of this Article.

(3) Regulations may—

(a)describe the proceedings in relation to which assistance by way of representation may be approved by reference to the court, tribunal or statutory inquiry, to the issues involved, to the capacity in which the person requiring the assistance is concerned, or in any other way;

(b)specify, in relation to any proceedings so described, the assistance by way of representation which may be approved; and

(c)preclude the giving of approval in the case of persons who would not be eligible for assistance if sub-paragraph ( a) of Article 3(1) were omitted or for the weekly sum specified in that sub-paragraph there were substituted such lower weekly sum as may be prescribed.

(4) Regulations may also make provision—

(a)as to which committees, courts, tribunals or other persons or bodies of persons are to be appropriate authorities;

(b)as to the procedure to be followed in applying for approval, the criteria for determining whether approval should be given and the conditions which should or may be imposed; and

(c)as to the circumstances in which approval may be withdrawn and the effect of its withdrawal.

[F11(4A) Without prejudice to paragraphs (3) and (4), regulations may make provision in relation to assistance by way of representation for purposes corresponding to those of Article 10(5A) to (5E) (legal aid for proceedings under the Children (Northern Ireland) Order 1995).]

(5) Where a person receives any assistance by way of representation in any civil proceedings before a court or any proceedings before a tribunal, then, except in so far as regulations otherwise provide, his liability by virtue of an order for costs made against him with respect to the proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute; and regulations shall make provision as to the court, tribunal or person by whom that amount is to be determined and the extent to which any determination of that amount is to be final.

(6) For the purposes of any inquiry under paragraph (5) as to the means of a person against whom an order for costs has been made, his dwelling house and household furniture and the tools and implements of his trade shall be left out of account except in such cases and to such extent as may be prescribed and except as so prescribed they shall, in all parts of the United Kingdom, be protected from seizure in execution to enforce the order.

Financial limit on prospective cost of advice and assistanceN.I.

6.—(1) Where a person seeks or receives any advice or assistance, then if at any time (whether before or after the advice or assistance has begun to be given) it appears to the solicitor from whom it is sought or received (or, in the case of advice or assistance sought or received from counsel, it appears to the solicitor instructing counsel) that the cost of giving it is likely to exceed the limit applicable under paragraph (2)—

(a)the solicitor shall determine to what extent that advice or assistance can be given without exceeding that limit; and

(b)shall not give it (or, as the case may be, not instruct counsel to give it) so as to exceed that limit except with the approval of the appropriate authority.

(2) The limit applicable under this paragraph is[F12 £88] or such other sum as may be prescribed.

(3) For the purposes of this Article the cost of giving any advice or assistance shall be taken to consist of such of the following as are applicable in the circumstances, that is to say—

(a)any expenses (including fees payable to counsel) which may be incurred by the solicitor or his firm in, or in connection with, the giving of the advice or assistance; and

(b)any charges or fees (not being charges for disbursements) which, apart from Article 7, would be properly chargeable by the solicitor or his firm in respect of the advice or assistance;

and in sub-paragraph ( b) “charges for disbursements” means charges in respect of such expenses (including fees payable to counsel) as are mentioned in sub-paragraph ( a).

(4) In sub-paragraph ( b) of paragraph (1) the reference to the approval of the appropriate authority shall, in relation to the giving of advice or assistance in any particular case, be construed as a reference to approval given in accordance with regulations by such committee or other person or body of persons as, in accordance with the provisions of regulations and of a scheme, is the appropriate committee, person or body for determining whether approval for the purposes of that sub-paragraph should be given in that case.

(5) In paragraph (4) “scheme” means a scheme for the time being in force under Article 18.

F12SR 1996/205

Contributions from persons receiving advice or assistanceN.I.

7.—(1) In respect of advice or assistance given to any person (in this Article and Article 8 referred to as “a client”), a client shall not, except in accordance with the following provisions of this Article, be required to pay any charge or fee.

(2) Where a client's disposable income exceeds[F13£100] a week and he is not (directly or indirectly) in receipt of[F14 income support[F15, an income-based jobseeker's allowance (payable under the Jobseekers (Northern Ireland) Order 1995)[F16or a guarantee credit under the State Pension Credit Act (Northern Ireland) 2002] or an income-related allowance under Part 1 of the Welfare Reform Act (Northern Ireland) 2007 (employment and support allowance)]], paragraph (1) shall not exempt him from liability to pay, in respect of the advice or assistance, charges or fees up to, but not in the aggregate exceeding, such amount as may be prescribed.

(3) Regulations may provide that for the sum specified in paragraph (2) there shall be substituted such other sum as may be prescribed.

Payment of charges or fees otherwise than through client's contributionN.I.

8.—(1) This Article applies to any charges or fees which, apart from Article 7, would be properly chargeable in respect of advice or assistance given to a client, in so far as those charges or fees are not payable by the client in accordance with that Article.

(2) In the following provisions of this Article “the solicitor”

(a)in relation to any advice or assistance given by a solicitor employed by a firm of solicitors, and so given in the course of that employment, or given by counsel on instructions given to him by a solicitor in the course of such employment, means that firm of solicitors, and

(b)in any other case, means the solicitor by whom any advice or assistance is given or, where it is given by counsel, the solicitor on whose instructions counsel gives it.

(3) Except in so far as regulations otherwise provide, charges or fees to which this Article applies shall constitute a first charge for the benefit of the solicitor—

(a)on any costs which (whether by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the client by any other person in respect of the matter in connection with which the advice or assistance is given, and

(b)on any property (of whatever nature and wherever situated) which is recovered or preserved for a client in connection with that matter, including his rights under any compromise or settlement arrived at in connection with that matter to avoid or bring to an end any proceedings.

(4) In so far as the charge created by paragraph (3) in respect of any charges or fees to which this Article applies is insufficient to meet them, the deficiency shall, subject to paragraph (5), be payable to the solicitor out of the legal aid fund.

(5) For the purpose of determining what charges or fees would be properly chargeable as mentioned in paragraph (1), and whether there is a deficiency to be payable out of the legal aid fund in accordance with paragraph (4), charges or fees in respect of advice or assistance given to a client shall, in such circumstances as may be prescribed, be taxed or assessed in such manner as may be prescribed.

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