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Access to Justice Act 1999

Commentary

Justices and their clerks

336.Section 98: Justices and clerks: immunity from costs. This section inserts a new section 53A in the Justices of the Peace Act 1997 (“JPA 1997”) to give immunity against costs orders to justices of the peace in proceedings arising from the execution of their duty. New section 53A also gives immunity to justices’ clerks (and those appointed to assist a justices’ clerk) in proceedings which arise from their exercise of a function which could be exercised by a single justice of the peace. It excludes proceedings in which bad faith is proved and makes clear that the immunity does not apply where the justice, clerk or assistant is the subject of criminal proceedings. The new section also provides for the court to order the payment by the Lord Chancellor of the costs of any party to proceedings against a justice of the peace or clerk where, but for the provisions of the section, it would order the costs to be paid by the justice or clerk. It provides for the Lord Chancellor to make regulations, subject to the affirmative resolution procedure, covering how the court is to exercise the power to award costs and how those costs are to be determined

337.Under the provisions of section 54 of the JPA 1997, a justice or justices’ clerk may be indemnified by their magistrates’ courts committee against any costs order, and in certain circumstances must be indemnified. Nevertheless the possibility remains that an individual could be faced with a costs order. This section will remove the fear of costs orders by putting the position beyond doubt.

338.Section 98(2) makes a similar change for Northern Ireland.

339.Section 99: Justices and clerks: indemnity. This section amends section 54 of the JPA 1997, so that justices of the peace, justices’ clerks and their assistants may be indemnified by the magistrates’ courts committee against costs orders in any proceedings, not only proceedings taken against them. It also removes the discretion to grant indemnity in non-criminal matters where bad faith is proved.

340.Despite the new immunity which will be provided by section 98, there will be circumstances in which indemnification continues to be appropriate. These are: where justices or clerks incurs costs themselves (as opposed to being ordered to pay the costs of other parties); where costs have been incurred before the new immunity takes effect; and where costs ordered against a justices’ clerk or assistant are not covered by the immunity provisions (that is where the proceedings do not arise from the exercise of a function of a single justice).

341.Section 100: Assistant justices’ clerks: immunity from action. This section amends sections 51 and 52 of the JPA 1997 in order to extend the immunity against action which is given to justices of the peace and justices’ clerks to those appointed to assist a justices’ clerk. Justices’ clerks’ assistants may, like justices’ clerks, perform functions which are authorised to be performed by a single justice of the peace. The amendment made by this section will provide consistency of treatment.

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