Legal aidIt is beyond the scope of this column to explain the new funding arrangements for what I may be forgiven for calling legal aid practitioners.

What I shall do is highlight some of the changes in so far as they affect those who do not regularly do legal aid work.Civil legal aid -- transitional provisions -- SI 2000/774In ordinary civil litigation the rules of old-style legal aid under part IV of the Legal Aid Act 1988 usually govern cases where a legal aid application was signed, or an emergency certificate granted by a solicitor, before 1 April 2000 and the application was received by, or notification of the emergency certificate given to, the Legal Aid Board before 2 May 2000.

Otherwise the new rules apply.

For the purposes of an application for costs against an assisted person or against the Legal Aid Board/Legal Services Commission, the new rules apply from 5 June 2000 even where the assisted person had old-style civil Legal Aid -- art.8.Costs awarded against an assisted person -- the new rulesThe new rules are the Community Legal Service (Cost Protection) Rules 2000 (SI 2000/824) and the Community Legal Service (Costs) Regulations 2000 (SI 2000/441).

Cost protection is the protection against party and party costs which funded persons (the new term for assisted persons) receive under s.11(1) Access to Justice Act 1999.

The protection is similar to s.17 of the Legal Aid Act, with the following major differences.Exceptions to cost protection: Cost protection does not apply to funding in the form of help at court (ie just that, without the lawyer formally being the client's representative in proceedings), litigation support (partial funding by the Commission of high cost litigation which is the subject of a conditional fee agreement (CFA)), legal help (similar to the old Green Form) or investigative support (limited representation in investigating the strength of a proposed claim), save in the case of investigative support, where the funded person drops the claim when his certificate is discharged.

Cost protection only applies for the period of the funding certificate save where legal help is followed by a certificate for full representation or approved family help (don't ask!) cost protection includes the period of legal help, and it applies where work had to be done in an emergency on a day when the Commission's office was shut and an emergency certificate is later granted.Resources of funded person: The value of the tools of the funded person's trade, clothes and furniture are left out of account in assessing his resources save to the extent the court considers the circumstances are exceptional.

The first £100,000 of the funded person's interest in his home is also left out of account.

The resources of his partner (which is defined widely enough to include a gay couple) are brought into account, unless the partner has a contrary interest in the dispute.Procedure: Where a court makes an order for costs against a person with costs protection (a s.11(1) order), it has to consider whether to specify the amount to be paid under the order, and it can only do so if (a) it has enough information to decide what is a reasonable amount and (b) it is sure that this amount does not exceed the amount of the party and party costs.

If the court does not at the time of making the order specify the amount to be paid by the funded person, it may make findings of fact as to the parties' conduct of the proceedings or otherwise which are relevant to the determination of the amount which should be paid.

Where the court has made a s.11(1) order without specifying the amount, the receiving party has three months to make an application for a determination of the amount, which must be accompanied by a bill (if the party and party costs were not summarily assessed at the original hearing) and a statement of resources.

The funded person has to file and serve a statement of his resources and points of dispute on the bill.

The amount to be paid may, and usually will, be determined by a costs judge or a district judge.The three-month time limit for the non-funded party to act is new, but there is a power to extend it if there has been a change in the funded person's circumstances, new information has come to light which could not be obtained earlier or there are other good reasons for failing to apply within three months.

As under the existing rules, a determination once made can be varied, but there is an absolute time limit for either applying for a determination or applying for a variation: this is six years from the date of the original s.11(1) order.Costs against the Commission -- the new rulesThe rules for making an order against the Commission under s.11(4)(d) Access to Justice Act are similar to those under s.18 of the 1988 Act.

The new rules are included in SIs 2000/441 and 824.

A new requirement is that the person seeking an order that the Commission pay the costs must apply within three months of the making of the s.11(1) costs order, and there appears to be no power to extend that time limit.

Otherwise the procedure for obtaining an order against the Commission is similar to that to be followed when applying for a determination of the funded person's liability under a s.11(1) costs order, save that (i) an order cannot be made against the Commission at the same time as the s.11(1) order, (ii) all relevant documents have to be served on the Commission, (iii) the variation provisions do not apply to an order against the Commission and (iv) the Commission can initiate a variation application against the funded person in order to reduce the amount of its own liability.There is a totally new provision requiring the Commission to pay party and party costs, which will only apply to high cost litigation.

Where such a case is being funded by a combination of CFA and Litigation Support, and the funded person has taken out insurance or similar protection against costs liability up to an amount approved by the Commission, if the actual party and party costs liability exceeds the ceiling of the insurance cover, the Commission will pay the difference -- Reg.6 of SI 2000/824.

The Commission has inserted a provision which was not contained in the Legal Aid Act or Regulations, namely that 'no order to pay cost s in favour of a non-funded party shall be made against the Commission .

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except in accordance with these Regulations' (Reg.7 of SI 2000/824).This regulation, which may arguably be ultra vires, is intended to reverse the effect of Kelly v South Manchester HA [1997] 3 All ER 274, where an order for costs was made against the Board under the Aiden Shipping jurisdiction on the ground of the Board's incompetent handling of an application.

Costs in favour of the funded person Reg.

15 of SI 2000/441 continues to disapply the indemnity principle to costs awarded to a funded person, but only to the extent the Commission has authorised the lawyers for the funded person to take private payment for the work.Also as before only the funded person's solicitor or the Commission can give a good receipt for money payable by way of costs, damages or otherwise to a funded person -- Regs.17 and 18 of SI 2000/441.ConclusionThe jury will be out for some time on the question whether access to justice will be increased by this act.

One thing is certain: those who do not get to grips with the new provisions will fall behind in what has become a very competitive market.