Background
326.There are just over 30,000 lay magistrates who are unpaid volunteers, and there are presently 94 stipendiary magistrates who are qualified lawyers. Justices’ clerks are qualified lawyers appointed by magistrates’ courts committees. They give advice to justices about the law, and they and their assistants may exercise the powers of a single justice of the peace (see paragraph 302 above).
327.General Commissioners of income tax are unpaid lay volunteers appointed by the Lord Chancellor, (or the Secretary of State in Scotland). There are approximately 3,500 General Commissioners and they sit in Divisions throughout the United Kingdom to determine appeals and other matters in respect of decisions of the Inland Revenue on a variety of tax matters. General Commissioners appoint a clerk in each Division who provides administrative support to the Commissioners, arranges appeal meetings and advises the Commissioners on points of law and procedure.
328.Coroners are appointed by local authorities in England and Wales. Most are part-time appointments of appropriately qualified lawyers or doctors. In accordance with the Coroners Act 1988, they conduct inquests into deaths (and treasure finds) in prescribed circumstances and deal with certain related matters.
329.At present, like all other judges, justices of the peace, and justices’ clerks exercising the functions of a single justice, cannot be sued in relation to anything they say or decide when exercising their judicial functions. The Act will extend this protection to General Commissioners of income tax and justices’ clerks’ assistants.
330.However, there are certain circumstances in which judicial officers may become involved in legal proceedings, not brought against them directly, but nonetheless arising out of their judicial decisions. These include judicial review proceedings, where the judicial officer appears or is represented as a respondent; appeals to the High Court by way of case stated; and applications to the High Court made by or under the authority of the Attorney General for an inquest or a fresh inquest. At present, justices of the peace, justices’ clerks and their assistants, General Commissioners and their clerks, and coroners, may personally be ordered to pay the costs of other parties in these proceedings.
331.When this happens, under current legislation, justices of the peace, justices’ clerks and their assistants may be indemnified, and in certain circumstances must be indemnified, against costs from the funds of their magistrates’ courts committee. There is currently no equivalent statutory protection for General Commissioners and their clerks or coroners. In practice, General Commissioners may be indemnified on a non-statutory basis from central Government funds (the formal position is that they are treated in the same way as members of non-departmental public bodies). Similarly, coroners may in practice be indemnified by their paying local authority.
332.The Act provides that in future justices of the peace, justices’ clerks and their assistants, and General Commissioners should have immunity from being ordered to pay another party’s costs in any legal proceedings arising out of the exercise of their judicial functions; except where it is proved that they acted in bad faith, or they are themselves subject to criminal proceedings. The Act also provides that where the court could have made a costs order but is prevented from doing so, it can instead order the costs of a party to be paid by the Lord Chancellor (or the Secretary of State in the case of General Commissioners in Scotland).
333.The Act also includes provisions relating to the indemnification of judicial officers for costs reasonably incurred in legal proceedings arising out of the exercise of their judicial functions. In the case of those judicial officers who will be given immunity against costs orders, this indemnity will mainly be relevant in respect of their own costs. The Act:
amends the existing provision for magistrates’ courts committees to indemnify justices of the peace, justices’ clerks and their assistants, to provide that they shall not be indemnified if they are proved to have acted in bad faith;
provides for General Commissioners and their clerks to be indemnified by the Lord Chancellor (or, in Scotland, the Secretary of State) against costs reasonably incurred, unless it is proved that they acted in bad faith; and
provides for coroners to be indemnified by their paying local authority against costs reasonably incurred.
334.In the case of General Commissioners’ clerks and coroners, the indemnity will be relevant to costs orders as well as other costs incurred. Coroners, who are funded by local authorities, will be indemnified, rather than given immunity, in order to avoid the need to make separate new funding arrangements to meet other parties’ costs.
335.The provisions in this part of the Act follow the consultation paper Liability of judicial officers and others for costs in court proceedings, Lord Chancellor’s Department, August 1996.
