The Civil Legal Aid (Merits Criteria) Regulations 2013

PART 6 E+W SPECIFIC MERITS CRITERIA

CHAPTER 1 E+W Mental Health and Mental Capacity

Criteria for determinations for full representation in relation to mental health proceedings E+W

51.—(1) For the purposes of a determination for full representation in relation to any matter described in paragraph 5(1)(a) or (b) of Part 1 of Schedule 1 to the Act (mental health and the repatriation of prisoners), to the extent that it relates to proceedings before the First-tier Tribunal or the Mental Health Review Tribunal for Wales—

(a) the criteria in regulations 39 (standard criteria for determinations for legal representation) and 41 to 44 (criteria for determinations for full representation) do not apply; and

(b) the criterion in paragraph (2) applies.

(2) The Director must be satisfied that it would be reasonable in all the circumstances of the case for the individual to be provided with full representation.

Criteria for determinations for full representation in relation to mental capacity proceedings E+W

52.—(1) For the purposes of a relevant determination the criteria in—

(a) regulation 39 (standard criteria for determinations for legal representation) and regulations 41(a) and (b), 42 and 43 (criteria for determinations for full representation) apply;

(b) regulations 41(c) and 44 (multi-party action damages criterion) do not apply; and

(c) paragraph (2) apply.

(2) The Director must be satisfied that—

(a) the Court of Protection has ordered, or is likely to order, an oral hearing; and

(b) it is necessary for the individual to be provided with full representation in the proceedings.

(3) In this regulation, a relevant determination is a determination for full representation in relation to any matter described in paragraph 5(1)(c) of Part 1 of Schedule 1 to the Act (mental capacity) in proceedings before the Court of Protection to the extent that they relate to—

(a) a person's right to life;

(b) a person's liberty or physical safety;

(c) a person's medical treatment (within the meaning of the Mental Health Act 1983 M1 );

(d) a person's capacity to marry, to enter into a civil partnership or to enter into sexual relations; or

(e) a person's right to family life.

Marginal Citations

M1 1983 c.20.

CHAPTER 2 E+W Public law

Standard criteria for determinations for legal representation in relation to public law claims E+W

53.  For the purposes of a determination for legal representation in relation to a public law claim, the Director must be satisfied that the criteria in regulation 39 (standard criteria for determinations for legal representation) are met and that—

(a) the act, omission or other matter complained of in the proposed proceedings appears to be susceptible to challenge; and

[F1 (b) there are no alternative proceedings before a court or tribunal which are available to challenge the act, omission or other matter, except where the Director considers that such proceedings would not be effective in providing the remedy that the individual requires.]

Textual Amendments

F1 Reg. 53(b) substituted (1.4.2013) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2013 (S.I. 2013/772), regs. 1, 2(2)

Standard criteria for determinations for investigative representation in relation to public law claims E+W

54.  For the purposes of a determination for investigative representation in relation to a public law claim, the Director must be satisfied that—

(a) the criteria in regulation 53 (standard criteria for determinations for legal representation in relation to public law claims) are met; and

(b) the individual has—

(i) notified the proposed defendant of the individual's potential challenge and given a reasonable time for the proposed defendant to respond; or

(ii) shown that doing so would be impracticable.

Criteria for determinations for investigative representation in relation to public law claims E+W

55.  For the purposes of a determination for investigative representation in relation to a public law claim the criteria in regulation 40(1)(a) and (b) (investigative representation) and 54 (standard criteria for determinations for investigative representation in relation to public law claims) apply and the criteria in regulation 40(1)(c) and (2) (investigative representation: minimum damages rule) do not apply.

Criteria for determinations for full representation in relation to public law claims E+W

56.—(1) For the purposes of a determination for full representation in relation to a public law claim—

(a) the criteria in regulations 41 to 44 (criteria for determinations for full representation) do not apply;

(b) the Director must be satisfied that the criteria in regulation 53 (standard criteria for determinations for legal representation in relation to public law claims) are met; and

(c) the criteria in paragraphs (2) and (3) apply.

(2) An individual may qualify for full representation in relation to a public law claim only if the Director is satisfied that—

(a) the individual has sent a letter before claim to the proposed defendant (except where this is impracticable), and where such a letter has been sent, the proposed defendant has been given a reasonable time to respond;

(b) the proportionality test is met; and

(c) the criterion in paragraph (3) is met.

[F2 (3) The Director must be satisfied that the prospects of successfully obtaining the substantive order sought in the proceedings are—

(a) very good, good or moderate; or

(b) borderline or marginal, and—

(i) the case is of significant wider public interest;

(ii) the case is one with overwhelming importance to the individual; or

(iii) the substance of the case relates to a breach of Convention rights.]

Textual Amendments

F2 Reg. 56(3) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(5) (with reg. 3)

Criteria for determinations in relation to Dublin III claims E+W

F3 56A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3 Reg. 56A revoked (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023 (S.I. 2023/1143), reg. 2(3), Sch. 2 Pt. 1 (with reg. 6)

CHAPTER 3 E+W Claims against public authorities

Criteria for determinations for investigative representation in relation to claims against public authorities E+W

57.—(1) For the purposes of a determination for investigative representation in relation to any matter described in paragraph 21 (abuse of position or powers by public authority) or 22 (breach of Convention rights by public authority) of Part 1 of Schedule 1 to the Act the criteria in—

(a) regulations 39 (standard criteria for determinations for legal representation) and 40(1)(a) and (b) (criteria for determinations for investigative representation) apply; and

(b) regulation 40(1)(c) and (2) apply, subject to paragraph (2).

(2) The criteria in regulation 40(1)(c) and (2) (investigative representation: minimum damages rule) only apply to the extent that such a matter—

(a) is part of a multi-party action; and

(b) does not relate to—

(i) the abuse of a child or a vulnerable adult; or

(ii) a contravention of the Equality Act 2010 M2 or of a previous discrimination enactment.

(3) In this regulation and in regulation 59—

(a) “abuse”, “child” and “vulnerable adult” have the meaning given by paragraph 3(5) of Part 1 of Schedule 1 to the Act (abuse of child or vulnerable adult); and

(b) “previous discrimination enactment” has the meaning given by paragraph 43(3) of Part 1 of Schedule 1 to the Act (equality).

Marginal Citations

M2 2010 c.15.

Criteria for determinations for full representation in relation to claims against public authorities E+W

58.—(1) For the purposes of a determination for full representation in relation to any matter described in paragraph 21 (abuse of position or powers by public authority) or 22 (breach of Convention rights by public authority) of Part 1 of Schedule 1 to the Act, the criteria in—

(a) regulation 39 (standard criteria for determinations for legal representation) F4 ... apply;

(b) regulation 41(a) and (b) (criteria for determinations for full representation) [F5 , regulation 42 (cost benefit criteria) and regulation 43 (prospects of success criterion) do not apply;] and

[F6 (c) paragraphs (2) and (3) apply.]

(2) An individual may qualify for full representation in relation to any matter described in paragraph 21 (abuse of position or powers by public authority) or 22 (breach of Convention rights by public authority) of Part 1 of Schedule 1 to the Act only if the Director is satisfied that—

(a) the proportionality test is met [F7 ; and] F8 ...

[F9 (b) the criterion in paragraph (3) is met.]

[F10 (3) The Director must be satisfied that the prospects of success are—

(a) very good, good or moderate; or

(b) borderline or marginal, and—

(i) the case is of significant wider public interest;

(ii) the case is one with overwhelming importance to the individual; or

(iii) the substance of the case relates to a breach of Convention rights.]

Textual Amendments

F4 Words in reg. 58(1)(a) omitted (22.7.2016) by virtue of The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(6)(a) (with reg. 3)

F5 Words in reg. 58(1)(b) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(6)(b) (with reg. 3)

F6 Reg. 58(1)(c) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(6)(c) (with reg. 3)

F7 Word in reg. 58(2)(a) inserted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(6)(d)(i) (with reg. 3)

F8 Reg. 58(2)(b) and word omitted (27.1.2014) by virtue of The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2014 (S.I. 2014/131), regs. 1(1), 2(5)(d) (with reg. 3)

F9 Reg. 58(2)(b) inserted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(6)(d)(ii) (with reg. 3)

F10 Reg. 58(3) inserted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(6)(e) (with reg. 3)

Criteria for determinations for full representation in relation to claims against public authorities: multi-party action damages criterion E+W

59.  For the purposes of a determination for full representation in relation to any matter described in paragraph 21 (abuse of position or powers by public authority) or paragraph 22 (breach of Convention rights by public authority) of Part 1 of Schedule 1 to the Act, the criteria in regulation 41(c) and 44 (multi-party action damages criterion) only apply to the extent that such a matter does not relate to—

(a) the abuse of a child or a vulnerable adult; or

(b) a contravention of the Equality Act 2010 or of a previous discrimination enactment.

CHAPTER 4 E+W Immigration

Criteria for determinations for full representation in relation to immigration E+W

60.—(1) For the purposes of a determination for full representation in relation to any matter described in paragraphs 25 to 30 (immigration) [F11 , [F12 31A (immigration, citizenship and nationality: separated children),] 32(1) (victims of trafficking in human beings) or 32A(1) (victims of slavery, servitude or forced or compulsory labour)] of Part 1 of Schedule 1 to the Act, to the extent that it relates to proceedings before the First-tier Tribunal or Upper Tribunal, the criteria in—

(a) regulation 39(a) to (e) (standard criteria for determinations for legal representation) apply;

(b) regulations 39(f) and 41 to 44 (criteria for determinations for full representation) do not apply; and

(c) paragraphs (2) and (3) apply.

(2) An individual may qualify for full representation in relation to any matter described in paragraphs 25 to 30 (immigration) [F11 , [F13 31A (immigration, citizenship and nationality: separated children),] 32(1) (victims of trafficking in human beings) or 32A(1) (victims of slavery, servitude or forced or compulsory labour)] of Part 1 of Schedule 1 to the Act only if the Director is satisfied that—

(a) if the case is not of significant wider public interest, the reasonable private paying individual test is met;

(b) if the case is of significant wider public interest, the proportionality test is met; and

(c) the criterion in paragraph (3) applies.

[F14 (3) The Director must be satisfied that the prospects of success are—

(a) very good, good or moderate; or

(b) borderline, marginal or unclear, and—

(i) the case is of significant wider public interest;

(ii) the case is one with overwhelming importance to the individual; or

(iii) the substance of the case relates to a breach of Convention rights.]

Textual Amendments

F11 Words in reg. 60(1)(2) substituted (31.7.2015) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2015 (S.I. 2015/1414), regs. 1(2), 2(4)

F12 Words in reg. 60(1) inserted (25.10.2019) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019 (S.I. 2019/1396), arts. 1, 4(5)

F13 Words in reg. 60(2) inserted (25.10.2019) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid for Separated Children) (Miscellaneous Amendments) Order 2019 (S.I. 2019/1396), arts. 1, 4(5)

F14 Reg. 60(3) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(7) (with reg. 3)

CHAPTER 5 E+W Housing

Criteria for determinations for full representation in relation to court orders for possession E+W

61.—(1) For the purposes of a determination for full representation in relation to any matter described in paragraph 33(1)(a) of Part 1 of Schedule 1 to the Act (court orders for sale or possession of the individual's home), to the extent that it relates to court orders for possession of the individual's home, the criteria in—

(a) regulation 39 (standard criteria for determinations for legal representation) F15 ... apply;

(b) regulations [F16 41 to 44] (criteria for determinations for full representation) do not apply; and

(c) paragraph (2) apply.

(2) The Director must be satisfied that the following criteria are met—

(a) if the individual is the defendant to a claim for possession, the individual has a defence to the claim; F17 ...

[F18 (b) the prospects of success are very good, good, moderate, borderline or marginal; and]

(c) the proportionality test is met.

Textual Amendments

F15 Words in reg. 61(1)(a) omitted (22.7.2016) by virtue of The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(8)(a) (with reg. 3)

F16 Words in reg. 61(1)(b) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(8)(b) (with reg. 3)

F17 Word in reg. 61(2)(a) omitted (22.7.2016) by virtue of The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(8)(c) (with reg. 3)

F18 Reg. 61(2)(b) inserted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(8)(d) (with reg. 3)

Criteria for determinations for full representation in relation to other housing matters to which specific merits criteria apply E+W

62.—(1) For the purposes of a relevant determination the criteria in—

(a) regulations 39 (standard criteria for determinations for legal representation), 41(b) and 43 apply (prospects of success criterion);

(b) regulations 41(a) and (c) (criteria for determinations for full representation), 42 (costs benefit criteria) and 44 (multi-party action damages criterion) do not apply; and

(c) paragraph (2) apply.

(2) The Director must be satisfied that—

(a) the proportionality test is met; and

(b) the landlord or other person responsible for the matter complained of has been notified of the individual's complaint (except where this is impracticable) and, where such notice has been given, the landlord or other person has had a reasonable opportunity to resolve the matter.

(3) In this regulation, a relevant determination is a determination for full representation in relation to any matter described in—

(a) paragraph 33(1)(b) of Part 1 of Schedule 1 to the Act (the eviction from the individual's home of the individual or others), to the extent that it relates to services provided to an individual in relation to the unlawful eviction from the individual's home of the individual or others;

(b) paragraph 35 of Part 1 of Schedule 1 to the Act (risk to health or safety in rented home); or

(c) paragraph 37 of Part 1 of Schedule 1 to the Act (protection from harassment), to the extent that it relates to the interference with an individual's enjoyment of their home (within the meaning of paragraph 35(4) of Part 1 of Schedule 1 to the Act) by a landlord or other person.

Criteria for determinations for investigative representation in relation to unlawful eviction cases E+W

63.—(1) For the purposes of a determination for investigative representation in relation to any matter described in paragraph 33(1)(b) of Part 1 of Schedule 1 to the Act (the eviction from the individual's home of the individual or others), to the extent that it relates to services provided to an individual in relation to the unlawful eviction from the individual's home of the individual or others, the criteria in—

(a) regulations 39 (standard criteria for determinations for legal representation) and 40(1)(a) and (b) (criteria for determinations for investigative representation) apply;

(b) regulation 40(1)(c) and (2) do not apply; and

(c) paragraphs (2) and (3) apply.

(2) Subject to paragraph (3), if the individual's claim is primarily a claim for damages or other sum of money in which the likely damages do not exceed £1,000, the case must be of significant wider public interest.

(3) For the purposes of paragraph (2), if the claim forms part of a multi-party action, only the lead claim within that action is capable of being a case of significant wider public interest.

CHAPTER 6 E+W Family

Standard criteria for determinations for full representation in relation to certain family disputes E+W

64.—(1) For the purposes of a relevant determination the criteria in—

(a) regulation 39(a) and (c) to (e) (standard criteria for determinations for legal representation) apply; and

(b) regulations 39(b) and (f) (standard criteria for determinations for full representation) and 41 to 44 (criteria for determinations for full representation) do not apply.

(2) In this regulation, a relevant determination is a determination for full representation in relation to—

(a) a domestic violence case;

(b) a private law children case;

F19 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) any matter described in paragraph 17(1) ([F20 Transitional EU arrangements] and international agreements concerning children) of Part 1 of Schedule 1 to the Act, to the extent that regulations 11(9)(c) or 65 do not apply; or

(e) any matter described in paragraph 18(1) ([F21 Transitional EU arrangements] and international agreements concerning maintenance) of Part 1 of Schedule 1 to the Act, to the extent that regulation 65 does not apply.

Textual Amendments

F19 Reg. 64(2)(c) omitted (27.1.2014) by virtue of The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2014 (S.I. 2014/131), regs. 1(1), 2(8) (with reg. 3)

F20 Words in reg. 64(2)(d) substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 41(4)(a) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

F21 Words in reg. 64(2)(e) substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 41(4)(b) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

Criteria for determinations for full representation in relation to special Children Act 1989 cases [F22 , parental placement and adoption cases] and certain cases relating to [F23 Transitional EU arrangements] and international agreements E+W

65.—(1) For the purposes of a determination for full representation in relation to a relevant determination, the criteria in—

(a) regulation 39(e) apply (standard criteria for determinations for legal representation); and

(b) regulations 39(a) to (d) and (f) (standard criteria for determinations for legal representation) and 41 to 44 (criteria for determinations for full representation) do not apply.

(2) In this regulation, a relevant determination is—

(a) a determination for full representation in relation to a special Children Act 1989 case; F24 ...

[F25 (aa) a determination for full representation in parental placement and adoption cases; or]

(b) a determination for full representation in a case in which the applicant is an individual who, in the State of origin, has benefited from complete or partial legal aid in relation to any matter described in—

(i) paragraph 17(1)(c) ([F26 Transitional EU arrangements] and international agreements concerning children) of Part 1 of Schedule 1 to the Act;

(ii) paragraph 18(1) ([F27 Transitional EU arrangements] and international agreements concerning maintenance) of that Part;

(iii) paragraph 18(3) (parties who benefited from free legal aid etc. in the Member State of origin) of that Part;

(iv) paragraph 18(3A) (applications under Article 10 of the 2007 Hague Convention) of that Part, to the extent that Article 17(b) of that Convention applies; or

(v) paragraph 18(3B) (applications under Article 17(b) of the 2007 Hague Convention which is applied by virtue of Article 37(2)) of that Part.

Textual Amendments

F22 Words in reg. 65 heading inserted (1.3.2023) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 (S.I. 2023/150), arts. 3(1), 5(7)(a)

F23 Words in reg. 65 heading substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 41(5)(a) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

F24 Word in reg. 65(2)(a) omitted (1.3.2023) by virtue of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 (S.I. 2023/150), arts. 3(1), 5(7)(b)(i)

F25 Reg. 65(2)(aa) inserted (1.3.2023) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 (S.I. 2023/150), arts. 3(1), 5(7)(b)(ii)

F26 Words in reg. 65(2)(b)(i) substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 41(5)(b)(i) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

F27 Words in reg. 65(2)(b)(ii) substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 41(5)(b)(ii) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

Criteria for determinations for full representation in relation to public law children cases [F28 and parental guardianship cases] E+W

66.—(1) For the purposes of a determination for full representation in relation to a public law children case [F29 or a parental guardianship case]—

(a) the criteria in regulations 39(b) to (d) and (f) (standard criteria for determinations for legal representation) and 41 to 44 (criteria for determinations for full representation) do not apply;

(b) the criteria in regulation 39(a) and (e) apply; and

(c) paragraph (2) applies.

[F30 (2) An individual may qualify for full representation in a public law children case [F31 or a parental guardianship case] only if the Director is satisfied that the criterion in paragraph (3) and, where applicable, paragraph (4) are met.

(3) It is reasonable for full representation to be provided, having regard to the importance of the case to the individual.

[F32 (4) If the individual is making or supporting an appeal or application, the prospects of success of that appeal or application are very good, good, moderate, borderline or marginal.]]

Textual Amendments

F28 Reg. 66 heading inserted (1.5.2023) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 (S.I. 2023/150), arts. 3(2)(c), 5(8)(a)

F29 Words in reg. 66(1) inserted (1.5.2023) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 (S.I. 2023/150), arts. 3(2)(c), 5(8)(b)

F30 Reg. 66(2)-(4) substituted for reg. 66(2) (27.7.2015) by The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (S.I. 2015/1571), regs. 1, 2(7) (with reg. 3)

F31 Words in reg. 66(2) inserted (1.5.2023) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023 (S.I. 2023/150), arts. 3(2)(c), 5(8)(c)

F32 Reg. 66(4) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(9) (with reg. 3)

Criteria for determinations for full representation in relation to domestic violence cases E+W

67.—(1) For the purposes of a determination for full representation in relation to a domestic violence case, regulation 64 (standard criteria for determinations for full representation in relation to certain family disputes) applies in addition to the criteria in [F33 paragraphs (2) and (3)].

[F34 [F35 (2) An individual may qualify for full representation in a domestic violence case only if the Director is satisfied that the prospects of success are very good, good, moderate, borderline or marginal.]

(3) An individual may qualify for full representation in a domestic violence case only if the Director is satisfied that the proportionality test is met.]

Textual Amendments

F33 Words in reg. 67(1) substituted (27.7.2015) by The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (S.I. 2015/1571), regs. 1, 2(8)(a) (with reg. 3)

F34 Reg. 67(2)(3) substituted for reg. 67(2) (27.7.2015) by The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (S.I. 2015/1571), regs. 1, 2(8)(b) (with reg. 3)

F35 Reg. 67(2) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(10) (with reg. 3)

Criteria for determinations for full representation in relation to private law children cases and certain cases relating to [F36 Transitional EU arrangements] and international agreements E+W

68.—(1) For the purposes of a relevant determination the criteria in regulation 64 (standard criteria for determinations for full representation in relation to certain family disputes) apply in addition to the criteria in [F37 paragraphs (2) and (2A)].

[F38 [F39 (2) The Director is satisfied that the prospects of success are very good, good, moderate, borderline or marginal.]

(2A) The Director is satisfied that the reasonable private paying individual test is met.]

(3) In this regulation, a relevant determination is a determination for full representation in relation to—

(a) a private law children case;

(b) any matter described in paragraph 17(1) ([F40 Transitional EU arrangements] and international agreements concerning children) of Part 1 of Schedule 1 to the Act, to the extent that regulations 11(9)(c) and 65 do not apply; or

(c) any matter described in paragraph 18(1) ([F41 Transitional EU arrangements] and international agreements concerning maintenance) of Part 1 of Schedule 1 to the Act, to the extent that regulation 65 does not apply.

Textual Amendments

F36 Words in reg. 68 title substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 41(6)(a) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

F37 Words in reg. 68(1) substituted (27.7.2015) by The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (S.I. 2015/1571), regs. 1, 2(9)(a) (with reg. 3)

F38 Reg. 68(2)(2A) substituted for reg. 68(2) (27.7.2015) by The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (S.I. 2015/1571), regs. 1, 2(9)(b) (with reg. 3)

F39 Reg. 68(2) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(11) (with reg. 3)

F40 Words in reg. 68(3)(b) substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 41(6)(b)(i) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

F41 Words in reg. 68(3)(c) substituted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 41(6)(b)(ii) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)

Criteria for determinations for full representation in relation to other family cases to which specific merits criteria apply E+W

69.—(1) For the purposes of a relevant determination the criteria in—

(a) regulations 39(a) to (e) (criteria for determinations for legal representation) apply;

(b) regulations 39(f), 41, 42 (cost benefit criteria), 43 (prospects of success criterion) and 44 (multi-party) do not apply; and

(c) paragraphs (2) and (3) apply.

(2) The Director must be satisfied that—

(a) the reasonable private paying individual test is met; and

(b) the criterion in paragraph (3) is met.

[F42 (3) The Director must be satisfied that the prospects of success are—

(a) very good, good or moderate; or

(b) borderline, marginal or unclear, and—

(i) the case is of significant wider public interest;

(ii) the case is one with overwhelming importance to the individual; or

(iii) the substance of the case relates to a breach of Convention rights.]

(4) In this regulation, a relevant determination is—

(a) a determination for full representation in relation to any matter described in paragraph 12 of Part 1 of Schedule 1 to the Act (victims of domestic violence and family matters) to the extent that it does not relate—

(i) to Part 1 or 3 of the Family Law Act 1986 M3 (child custody and declarations of status);

(ii) subject to sub-paragraph (b), to any provision of Part 1 or 2 of the Children Act 1989 M4 (orders with respect to children in family proceedings); [F43 or

(iii) to section 51A of the Adoption and Children Act 2002 (post-adoption contact orders);]

(b) a determination for full representation in relation to any matter described in paragraph 12 of Part 1 of Schedule 1 to the Act (victims of domestic violence and family matters) to the extent that it relates an order made under section 15 of, and Schedule 1 to, the Children Act 1989;

[F44 (ba) a determination for full representation in relation to any matter described in paragraph 15 of Part 1 of Schedule 1 to the Act (children who are parties to family proceedings), to the extent that regulations 64 and 68 do not apply;]

(c) a determination for full representation in relation to any matter described in paragraph 18(2) of Part 1 of Schedule 1 to the Act (applications in relation to maintenance decisions), to the extent that regulations 11(9)(b) or 70 do not apply; or

(d) any matter described in paragraph 18(3A) of Part 1 of Schedule 1 to the Act (applications under Article 10 of the 2007 Hague Convention), to the extent that article 17(a) M5 of the 2007 Hague Convention applies.

Textual Amendments

F42 Reg. 69(3) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(12) (with reg. 3)

F43 Reg. 69(4)(a)(iii) and word inserted (10.12.2015) by The Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015 (S.I. 2015/2005), regs. 1(2), 2(3)

F44 Reg. 69(4)(ba) inserted (27.1.2014) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2014 (S.I. 2014/131), regs. 1(1), 2(11) (with reg. 3)

Marginal Citations

M3 1986 c.55.

M4 1989 c.41.

M5 Article 17(a) provides that in the case of all applications under the 2007 Hague Convention other than those under article 15 or 16 the provision of free legal assistance may be made subject to a merits test.

Criteria for determinations in relation to the EU Maintenance Regulation E+W

70.—(1) For the purposes of a determination for any form of civil legal services in relation to any matter described in paragraph 18(2) of Part 1 of Schedule 1 to the Act (applications relating to maintenance decisions), to the extent that it—

(a) is an application under Article 56(1)(c) to (f) of the EU Maintenance Regulation; and

(b) concerns maintenance obligations arising from a parent-child relationship towards a person under the age of 21,

the general merits criteria do not apply and paragraph (2) applies.

(2) An individual may qualify for civil legal services only if the Director is satisfied that the application is not manifestly unfounded.

Criteria for determinations in relation to the 2007 Hague Convention E+W

71.—(1) For the purposes of a determination for any form of civil legal services in relation to any matter described in paragraph 18(3A) (applications under Article 10 of the 2007 Hague Convention), to the extent that it—

(a) does not relate to an application under Article 10(1)(a) or (b) of the 2007 Hague Convention; and

(b) is an application by a creditor under the 2007 Hague Convention concerning maintenance obligations arising from a parent-child relationship towards a person under the age of 21,

the general merits criteria do not apply and paragraph (2) applies.

(2) The individual may qualify for civil legal services only if the Director is satisfied that the application is not manifestly unfounded.

CHAPTER 7 E+W Cross-border disputes

Criteria for determinations in relation to cross-border disputes E+W

F45 72.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F45 Reg. 72 revoked (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Revocation and Sunset Disapplication) Regulations 2023 (S.I. 2023/1143), reg. 2(3), Sch. 2 Pt. 1 (with reg. 6)

CHAPTER 8 E+W Legal persons

Criteria for determinations in relation to legal persons E+W

73.  For the purposes of a determination in relation to an application for civil legal services by a legal person—

(a) to the extent that it relates to legal help, regulation 32 (criteria for determinations for legal help) does not apply and the criteria in regulation 74 apply;

(b) to the extent that it relates to legal representation, regulations 39 (standard criteria for legal representation), 40 (criteria for determinations for investigative representation) and 41 to 44 (criteria for determinations for full representation) do not apply and the criteria in regulations 74 and 75 apply.

Standard criteria for legal help and legal representation in relation to legal persons E+W

74.—(1) A legal person may qualify for legal help or legal representation only if the Director is satisfied that it is reasonable, in all the circumstances of the case, for the legal person to be provided with legal help or legal representation.

(2) It is reasonable for the legal person to be provided with legal help or legal representation only if the Director is satisfied that—

(a) the legal person does not have access to other potential sources of funding (other than a conditional fee agreement) from which it would be reasonable to fund the provision of legal help or legal representation, including, but not limited to, taking into account the financial capacity of the legal person's shareholders, partners or members;

(b) there are no other persons, other than the legal person, including those who might benefit from the provision of legal help or the proceedings, who can reasonably be expected to be provided with legal help or to bring the case;

(c) there is a need for legal help or legal representation in all the circumstances of the case; and

(d) there is sufficient benefit to the legal person, having regard to all the circumstances of the case, to justify the provision of legal help or legal representation.

Criteria for determinations for legal representation in relation to legal persons E+W

75.—(1) A legal person may qualify for legal representation only if the Director is satisfied that the following criteria are met—

(a) the case is unsuitable for a conditional fee agreement;

(b) the legal person has exhausted all reasonable alternatives to bringing proceedings including any complaints system, ombudsman scheme or other form of alternative dispute resolution; and

(c) the proceedings are not likely to be allocated to the small claims track.

(2) A legal person may qualify for investigative representation only if the Director is satisfied that —

(a) the criteria in paragraph (1) are met;

(b) the prospects of success of the case are unclear and substantial investigative work is required before those prospects can be determined; and

(c) the Director has reasonable grounds for believing that once the investigative work to be carried out under investigative representation is completed the case will satisfy the criteria in [F46 paragraphs (3)(b) and (3A)].

(3) A legal person may qualify for full representation only if the Director is satisfied that—

(a) the criteria in [F47 paragraphs (1) and (3A) are met; and];

(b) the likely benefit of the proceedings to the legal person and others justify the likely costs, having regard to the prospects of success and all the other circumstances of the case; F48 ...

F48 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F49 (3A) The Director must be satisfied that the prospects of success of the case are—

(a) very good, good or moderate; or

(b) borderline or marginal, and the case is of significant wider public interest.]

(4) For the purposes of this regulation, regulations 4 (prospects of success) and 5 (prospects of success test) apply as if the references in them to individuals were references to legal persons.

Textual Amendments

F46 Words in reg. 75(2)(c) substituted (27.7.2015) by The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (S.I. 2015/1571), regs. 1, 2(11)(a) (with reg. 3)

F47 Words in reg. 75(3)(a) substituted (27.7.2015) by The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (S.I. 2015/1571), regs. 1, 2(11)(b) (with reg. 3)

F48 Reg. 75(3)(c) and word omitted (27.7.2015) by virtue of The Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 (S.I. 2015/1571), regs. 1, 2(11)(c) (with reg. 3)

F49 Reg. 75(3A) substituted (22.7.2016) by The Civil Legal Aid (Merits Criteria) (Amendment) Regulations 2016 (S.I. 2016/781), regs. 1(1), 2(13) (with reg. 3)