60.8 Criminal matters - generally
CDS funding is available to ensure that individuals who are involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require [note 1]. The CDS provides the following levels of service to eligible individuals:
Advice and Assistance on criminal matters
Representation for criminal offences
Additionally, if a person is questioned by the police about an offence he/she has a right to free legal advice from a contracted solicitor (see paragraph 60.4 and 60.5). This service is not means tested. If a person who has to appear before a magistrates court on a criminal charge does not have a solicitor there will usually be a duty solicitor available at the court or on call to provide free advice and representation, unless the person is on bail and the case is minor and cannot result in a prison sentence.
Generally, the official receiver will have no involvement in this type of legal assistance, and so this chapter will focus on civil matters.
60.9 Civil matters - generally
The CLSfund replaces the former civil legal aid and civil assistance and advice (known as the Green Form Scheme.) The CLS funds the following range of legal services to eligible individuals:
Legal Help - provides initial advice and assistance on a civil legal problem. This replaces the former civil assistance and advice (Green Form) scheme.
Help at Court - provides assistance at a court hearing, but without the advisor formally acting for the individual in the whole proceedings.
Approved Family Help - provides help in relation to a family dispute. This includes the services categorised as legal help, but can also include issuing proceedings and representation to obtain disclosure of information from another party, or to obtain a consent order following an agreement of matters in dispute.
Family Mediation - mediation for a family dispute, including determining whether mediation is suitable in the particular case.
Legal Representation - provides representation in court for an individual taking or defending court proceedings. This replaces the former civil legal aid. This may take the form of Investigative Help where funding is limited to investigating the strength of the case, or Full Representation where funding is provided up to and including representation in legal proceedings.
60.10 Excluded matters in civil cases
Services consisting of the provision of help (beyond the provision of general information about the law and legal system and the availability of legal services) in relation to the following matters are not eligible for CLS funding [note 2] :
allegations of negligently caused injury, death or damage to property, apart from allegations relating to clinical negligence,
the making of wills
matters of trust law
defamation or malicious ndary disputes
matters of company and partnership law
any matters arising out of the carrying on of a business
matters not relating to the law of England and Wales.
Services under CLS funding are generally only available for matters relating to the law of England and Wales [note 3].However, funding may be provided as part of the CLS services relating to international law for the purpose of fulfilling an obligation imposed on the United Kingdom under that law [note 4] (e.g. representation in the European Court of Human Rights.)
A director of a company in compulsory liquidation is not eligible for CLS funding in respect of any matter arising out of the company business, which will include any subsequent disqualification proceedings, see also paragraph 60.17.
60.11 Procedure for applying for CLS funding
An individual seeking CLS funding must make an application through a CLS approved solicitor. The individual is usually required to attend at the solicitor's office in person to make the application, although in certain exceptional cases an application may be completed by post or the solicitor may travel to the individual. Depending on the type of funding being sought, the solicitor may be able to make a decision on the application (see paragraph 60.12), otherwise the completed application is forwarded by the solicitor to the regional CLS office for a decision to be made (see paragraph 60.13.)
60.12 Controlled/contract work
Funding for Legal Help and Help at Court can be approved by the solicitor without the need to refer the application to the Commission before granting the funding.
The individual fills out an application form with the assistance of the solicitor. The solicitor then considers the application against the decision making guidance issued in the Funding Code and Community Legal Services (Financial) Regulations 2000 (see Part 3.) If the individual is eligible and has signed the appropriate Legal Help form work can be carried out on his/her behalf.
Each form is only valid for the specific matter for which it was signed. In many cases individual granted Legal Help will go on to apply for Legal Representation if the matter cannot be concluded by Legal Help alone, and if the funding criteria for Legal Representation are satisfied.
Applications for all other types of funded services, i.e. Investigative Help, Legal Representation and Approved Family Help, must be made to the regional office of the CLS. An individual seeking funding will approach a solicitor who will assist in the completion of an application form. The solicitor will then forward the application to the regional office of the CLS, who will consider it against the guidance issued in the Funding Code and Community Legal Services (Financial) Regulations 2000 (see Part 3.) If the individual is eligible for funding, a certificate is issued by the CLS, which authorises the work to be carried out that will be funded.
The Commission will pay the solicitor for services provided under the certificate separately from any payment made by the Commission to the solicitor in respect of contract work (see paragraph 60.12.) The solicitor may bill the Commission for work carried out during the life of the case on a periodical basis and may also obtain prior authority from the Commission before incurring a disbursement of more £100. When the case is completed, the solicitor must submit his/her final bill to the court and/or the Commission for assessment, which is the process for approving the costs incurred under the certificate.
60.14 Grant and scope of a certificate
It is rare for a certificate to be granted to cover the whole of the proceedings. A certificate will usually be valid up to a certain point, e.g. all steps up to a Case Management Conference. A limitation is also placed on the costs that can be incurred, usually up to £2,500 plus VAT in the first instance.
Requests for amendment to the scope or costs limitation are made to the CLS. In some restricted cases an organisation that is Quality Mark approved by the CLS can make an amendment to either limitation.
60.15 Emergency certificates
A solicitor who is Quality Mark approved by the CLS can assess and grant an emergency certificate for Representation in certain types of cases. An emergency certificate is valid for limited urgent actions only and a limit is placed on the costs that may be incurred, usually of £1,500 plus VAT. An application for Full Representation must be made to the CLS regional office within 5 working days.
This power must not be exercised where there is an outstanding certificate or application at the CLS, or where a previous application has been refused, unless there has been a clear change in circumstances that would suggest that a reapplication would be successful.
60.16 Revocation and discharge of certificates
A certificate may be terminated by being revoked or discharged. Revocation has serious consequences for the funded individual, as it means that the individual must repay the Commission all the costs paid or payable under the certificate. A certificate will normally only be revoked where the funded individual has been dishonest or failed to comply with his/her obligations under the Funding Code and regulations. It can also take place where a client in receipt of an emergency certificate is assessed as financially ineligible or fails to accept an offer of funding subject to a contribution.
Discharge is the more usual method by which a certificate is terminated. It simply means that no further funding will be granted. A certificate may be discharged where the criteria under which the funding was granted are no longer satisfied, or where it is unreasonable for funding to continue, taking into account the interests of the funded individual, any wider public interest and the interest of the CLS fund. It may also be discharged on the following specific grounds [note 5];
where the funded individual has died,
where the funded individual is no longer financially eligible,
with the consent of the funded individual,
where all work authorised by the Commission has been completed, or
on grounds of the conduct of the funded individual.
In addition, in the case of a certificate for Investigative Help, the certificate may be discharged where sufficient work has been carried out to enable the prospect of success to be determined.
60.17 Eligibility for funding in insolvency related matters
All services relating to matters of company law are not eligible for CLS funding, and this specifically includes directors disqualification cases [note 6].
However, by direction the Lord Chancellor has authorised the Commission to fund Representation in certain types of cases that would otherwise fall within excluded services. One of these types of cases are personal insolvency proceedings which are fundable, whether or not the insolvency was connected with the running of a business [note 7]. Generally proceedings are not considered to be personal insolvency proceedings under the Funding Code until a bankruptcy petition has been presented. This means that a bankrupt may be eligible for CLS funding in bankruptcy restrictions orders proceedings. A certificate will not be granted to defend a debt claim or bankruptcy proceedings where no personal benefit will be gained by the funded individual, e.g. where the amount of other outstanding debts would lead to bankruptcy in any case [note 8].A certificate is unlikely to be granted and a previously granted certificate may be discharged on the making of a bankruptcy order where the action in question vests in the trustee in bankruptcy. See also paragraphs 60.16 and 60.33.