Chapter VIIIE+W+S Assistance for certain legal proceedings
109 Proceedings in relation to which assistance may be provided.E+W+S
(1)This Chapter applies to proceedings or prospective proceedings to the extent that they consist in, or arise out of—
(a)an application to the court under section 15(3) (application for order authorising member to take or continue proceedings on behalf of trade union) or any other proceedings brought by virtue of that section;
(b)an application to the court under section 16 (remedy against trustees for unlawful use of trade union property);
(c)an application to the court under section 26 (remedy for failure to maintain register of members [F1or secure confidentiality]);
(d)an application to the court under section 31 (remedy for failure to comply with request for access to trade union’s accounting records);
[F2(da)an application to the court under section 45C (remedy for failure to comply with duty to secure positions not held by certain offenders);]
(e)an application to the court under section 56 (remedy for failure to comply with requirements as to election for office);
(f)an application to the court under section 62 (application for order where industrial action does not have support of ballot);
(g)proceedings brought by virtue of section 71 (restriction on use of funds for political objects) with respect to the unlawful application of the funds of a trade union;
(h)an application to the court under section 81 (remedy for failure to comply with requirements as to political ballot).
(2)This Chapter applies to proceedings or prospective proceedings [F3to the extent that they consist in, or arise out of, proceedings in the High Court or the Court of Session with respect to] an alleged breach or threatened breach of the rules of a trade union relating to any of the following matters—
(a)the appointment or election of a person to, or the removal of a person from, any office;
(b)disciplinary proceedings by the union (including expulsion);
(c)the authorising or endorsing of industrial action;
(d)the balloting of members;
(e)the application of the union’s funds or property;
(f)the imposition, collection or distribution of any levy for the purposes of industrial action;
(g)the constitution or proceedings of any committee, conference or other body.
The reference above to the rules of a trade union includes the rules of any branch or section of the trade union; and in paragraph (a) “office” includes any position by virtue of which a person is an official in relation to the trade union or is entitled to attend as a representative any meeting concerned with union business.
(3)This Chapter also applies to proceedings or prospective proceedings to the extent that they consist in, or arise out of such other proceedings against a trade union, an official of a trade union or the trustees of the property of a trade union as may be specified in an order made by the Secretary of State.
Any order shall be made by statutory instrument; and no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.
Textual Amendments
F1Words in s. 109(1) inserted (30.8.1993) by 1993 c. 19, s. 49(2), Sch. 8 para. 58(a)(i); S.I. 1993/1908, art. 2(1), Sch. 1
F2S. 109(da) inserted (30.8.1993) by 1993 c. 19, s. 49(2), Sch. 8 para. 58(a)(ii); S.I. 1993/1908, art. 2(1), Sch.1
F3Words in s. 109(2) substituted (30.8.1993) by 1993 c. 19, s. 49(2), Sch. 8 para. 58(b); S.I. 1993/1908, art. 2(1), Sch.1
110 Application for assistance: its consideration.E+W+S
(1)An individual who is an actual or prospective party to proceedings to which this Chapter applies may apply [F4to the Commissioner for the Rights of Trade Union Members (in this Chapter referred to as “the Commissioner”)] for assistance in relation to the proceedings, and the Commissioner shall, as soon as reasonably practicable after receiving the application, consider it and decide whether and to what extent to grant it.
(2)The matters to which the Commissioner may have regard in determining whether, and to what extent, to grant an application include—
(a)whether the case raises a question of principle,
(b)whether it is unreasonable, having regard to the complexity of the case, to expect the applicant to deal with it unaided, and
(c)whether, in the Commissioner’s opinion, the case involves a matter of substantial public interest.
(3)In the case of an application made by virtue of section 109(1)(c), [F5(e)] or (h) (failure to maintain register of members or to comply with requirements as to election [F5or political ballot]), if—
(a)the Certification Officer has already made a declaration with respect to the subject-matter of the proceedings or prospective proceedings, and
(b)it appears to the Commissioner that the applicant would (if assisted) have a reasonable prospect of securing the making of an enforcement order in the proceedings,
the Commissioner shall grant the application to the extent he considers necessary for securing that, so far as reasonably practicable, all the steps he considers appropriate (including, where appropriate, the holding of another ballot or election) are taken by the trade union for the purpose of remedying the declared failure and of ensuring that a failure of the same or a similar kind does not occur in future.
(4)The Commissioner shall not grant an application made by virtue of section 109(2) (proceedings arising out of breach of rules) unless it appears to him—
(a)that the breach of rules in question affects, or may affect, members of the union other than the applicant, or
(b)that similar breaches of the rules have been or may be committed in relation to other members of the union.
(5)If the Commissioner decides not to provide assistance, he shall, as soon as reasonably practicable after making the decision, notify the applicant of his decision and, if he thinks fit, of the reasons for it.
Textual Amendments
F4Words in s. 110(1) substituted (30.8.1993) by 1993 c. 19, s. 49(2), Sch. 8 para.59; S.I. 1993/1908, art. 2(1), Sch. 1
F5Words in s. 110(3) substituted (30.8.1993) by 1993 c. 19, s. 49(1), Sch. 7 para.20; S.I. 1993/1908, art. 2(1), Sch. 1
111 Provision of assistance.E+W+S
(1)If the Commissioner decides to provide assistance, he shall, as soon as reasonably practicable after making the decision—
(a)notify the applicant, stating the extent of the assistance to be provided, and
(b)give him a choice, subject to any restrictions specified in the notification, as to the financial arrangements to be made in connection with the provision of the assistance.
(2)The assistance provided may include the making of arrangements for, or for the Commissioner to bear the costs of—
(a)the giving of advice or assistance by a solicitor or counsel, and
(b)the representation of the applicant, or the provision to him of such assistance as is usually given by a solicitor or counsel—
(i)in steps preliminary or incidental to the proceedings, or
(ii)in arriving at or giving effect to a compromise to avoid or bring an end to the proceedings.
[F6(3)Where assistance is provided with respect to the conduct of proceedings—
(a)it shall include an agreement by the Commissioner to indemnify the applicant (subject only to any exceptions specified in the notification) in respect of any liability to pay costs or expenses arising by virtue of any judgment or order of the court in the proceedings,
(b)it may include an agreement by the Commissioner to indemnify the applicant in respect of any liability to pay costs or expenses arising by virtue of any compromise or settlement arrived at in order to avoid the proceedings or bring the proceedings to an end, and
(c)it may include an agreement by the Commissioner to indemnify the applicant in respect of any liability to pay damages pursuant to an undertaking given on the grant of interlocutory relief (in Scotland, an interim order) to the applicant.]
(4)Where the Commissioner provides assistance in relation to any proceedings, he shall do so on such terms, or make such other arrangements, as will secure that a person against whom the proceedings have been or are commenced is informed that assistance has been or is being provided by the Commissioner in relation to them.
(5)In England and Wales, the recovery of expenses incurred by the Commissioner in providing an applicant with assistance (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of the Commissioner—
(a)on any costs which, by virtue of any judgment or order of the court, are payable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and
(b)on any sum payable to the applicant under a compromise or settlement arrived at in connection with that matter to avoid or bring proceedings to an end.
(6)In Scotland, the recovery of such expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall be paid to the Commissioner, in priority to other debts—
(a)out of any expenses which, by virtue of any judgment or order of the court, are payable to the applicant by any other person in respect of the matter in connection with which the assistance is provided, and
(b)out of any sum payable to the applicant under a compromise or settlement arrived at in connection with that matter to avoid or bring proceedings to an end.
Textual Amendments
F6S. 111(3) substituted (30.8.1993) by 1993 c. 19, s. 49(2), Sch. 8 para.60; S.I. 1993/1908, art. 2(1), Sch. 1
112 Title of proceedings where assistance provided.E+W+S
(1)Where a person is receiving assistance in relation to proceedings, there shall, if he so wishes, be added after his name in the title of the proceedings the words “(assisted by the Commissioner for the Rights of Trade Union Members)".
(2)The addition of those words shall not be construed as making the Commissioner a party to the proceedings or as liable to be treated as a party for any purpose; and the omission of those words shall be treated as an irregularity only and shall not nullify the proceedings, any step taken in the proceedings or any document, judgment or order therein.
113 Recovery of sums paid in case of fraud.E+W+S
(1)Where the Commissioner grants an application to a person who for the purposes of the application—
(a)has made a statement which he knew to be false in a material particular, or
(b)has recklessly made a statement which was false in a material particular,
he is entitled to recover from that person any sums paid by him to that person, or to any other person, by way of assistance.
(2)This does not affect the power of the Commissioner to enter into any agreement he thinks fit as to the terms on which assistance is provided.
114 Supplementary provisions.E+W+S
(1)Nothing in this Chapter affects the law and practice regulating the descriptions of persons who may appear in, conduct, defend and address the court in any proceedings.
(2)The power of the Commissioner to provide assistance to a prospective applicant to the court under section 26, 56 or 81 (under which applications may be made either to the court or to the Certification Officer, and in certain cases to both) does not entitle the Commissioner to provide assistance with the making of an application to the Certification Officer.
(3)In this Chapter “applicant”, in relation to assistance under this Chapter, means the individual on whose application the assistance is provided.