Docstoc

The Northern Ireland Funding Cod

Document Sample
The Northern Ireland Funding Cod Powered By Docstoc
					The Northern Ireland Funding Code
Consultation Paper on the Proposed Criteria
Should you require any further information
about the Northern Ireland Legal Services
Commission please visit our website at
www.nilsc.org.uk or alternatively contact
us at the below address.

Northern Ireland Legal Services Commission
2nd Floor, Waterfront Plaza
8 Laganbank Road, Mays Meadow
Belfast BT1 3BN

Telephone 028 9040 8888
Facsimile 028 9040 8995
www.nilsc.org.uk

This document will be made available
in a wide range of alternative formats.
                                             5223




Requests for alternative formats should
be made to the above address.
Contents

Foreword by Chairman                                                  Page 2

About the Consultation Exercise                                                4

How to respond                                                                 5
             Closing Date                                                      5
             Miscellaneous                                                     5
             Confidentiality and Complaints                                    5

Executive Summary                                                              7

Chapter 1    Code in Context                                                   8

Chapter 2    General Funding Code and levels of Service                       10

Chapter 3    Criteria for Family Cases                                        14

Chapter 4    High Cost Cases Criteria                                         18

Chapter 5    Clinical Negligence Cases                                        20

Chapter 6    Money Damages Criteria                                           22

Chapter 7    Claims Against Public Authorities                                24

Chapter 8    Conclusion                                                       25

Key Question for Consultation                                                 27

Annex 1      Respondents to Previous Consultation                             28

Annex 2      Levels of Service Grid                                           29

Annex 3      Northern Ireland Funding Code Criteria                           30

Annex 4      Consultation Criteria                                            56

                                                          The Northern Ireland Funding Code 1
Access to Justice | Northern Ireland Legal Services Commission




Foreword by Chairman



The Northern Ireland Legal Services                        cross checked the alignment between
Commission is publishing two consultation                  existing provision of legal aid with Targeting
documents on the proposed criteria and                     Social Need groups. A paper detailing the
procedures for the Northern Ireland Funding                Commission’s rationale for priority areas
Code, together with Regulatory and Equality                for funding can be found on our website at
Impact Assessments. We think it useful to                  (www.nilsc.org.uk).
begin by providing some background on
these documents.                                           On the basis of the evidence presented
                                                           to it and of research into legal need,
When the Northern Ireland Legal Services                   the Commission believes that the Lord
Commission (the Commission) was                            Chancellor’s priorities for funding legally
established under Article 3 of the Access                  aided services in England and Wales
to Justice (Northern Ireland) Order 2003                   (www.legalservices.gov.uk) are equally
in October 2003, the Commission was                        applicable to NI and therefore propose
required by the Lord Chancellor to prepare                 to adopt the following priorities;
a Northern Ireland Funding Code (the Code)
in accordance with Article 15 of the Order.                1)    special children order proceedings
                                                                 (defined on p36 of the Code Criteria);
The purpose of the Code is to set out the
Criteria according to which decisions will                 2)    civil proceedings where the client is
be taken to fund civil legal services for an                     at real and immediate risk of loss of
individual and identify what services should be                  life or liberty;
funded. In earlier Exposure and Consultation
papers on the Code the Commission consulted                After that the Commission would intend to
on the Lord Chancellor’s priorities set out                give the following categories higher priority
in the Funding Code of the Legal Services                  than others:
Commission in England and Wales and sought
comment from consultees on the applicability               3)    help with social welfare issues that
of these priority areas for legally aided                        will enable people to avoid or climb
services in Northern Ireland. In addition to this                out of social exclusion, including help
consultation the Commission informed itself                      with housing proceedings (as defined
about priority funding areas by conducting a                     within the Funding Code) and advice
survey on legal need to ensure the priorities                    relating to debt, employment rights,
matched identified need and conducted                            and entitlement to social security;
an investigation of financial eligibility that




2 The Northern Ireland Funding Code
                                              Access to Justice | Northern Ireland Legal Services Commission




4)   domestic violence proceedings;                 The Commission considers the development
                                                    and introduction of the Code to be an important
5)   proceedings concerning the welfare of          step in the process of reform of publicly funded
     children (including proceedings under          legal services in Northern Ireland. It is a further
     Part IV and Part V of the Children Order       step towards full implementation of the 2003
     (Northern Ireland) 1995 not included           Order and can be seen in the context of the
     above, adoption proceedings, and               other reforms currently being undertaken by
     proceedings concerning residence); and         the Commission. Parallel strands of work are
                                                    ongoing to develop new Financial Eligibility
6)   proceedings against public authorities         Regulations; new Regulations governing
     alleging serious wrong doing, abuse            the application of the Statutory Charge; a
     of position or power or significant            Registration Scheme and an Order governing
     breach of human rights.                        remuneration in legally aided cases.
                                                    I should like to thank all who contributed to
As required for legislative change of this          the work that has brought us to this point,
importance, an Equality Impact Assessment           including existing and former Commissioners,
(EQIA) and a Regulatory Impact Assessment           staff of the Commission, and colleagues in
(RIA) have been completed. The Commission           the Northern Ireland Court Service and from
will monitor and assess the actual impact of        the Legal Services Commission of England
the Funding Code after implementation to            and Wales.
ensure that no unintended differential impacts
arise between different Section 75 groups.          The public consultation on the proposals for the
An RIA has also been completed which sets           NI Funding Code is being formally launched on
out the impact assessment of the proposals          the 29th June 2009 and lasts for 16 weeks.
for change as set out in the Funding Code.
The most notable impact identified is in
the funding of money damages cases. The
Commission is aware of the importance of this
area of work to members of the legal profession
and while it is not among the Lord Chancellor’s
Priority funding areas, the Commission will
keep this area of funding under review after
implementation of the Code.




                                                                        The Northern Ireland Funding Code 3
Access to Justice | Northern Ireland Legal Services Commission




About the Consultation Exercise



The current statutory basis for provision of
Legal Aid by the Commission is principally
set out in the Legal Aid Advice and Assistance
(Northern Ireland) Order 1981 and the Legal
Aid (General) Regulations (Northern Ireland)
1965. The Access to Justice (Northern Ireland)
Order 2003 provides the legislation basis
for the modernisation of the provision and
administration of public legal services in
Northern Ireland. Article 15 of the 2003 Order
requires the Commission to prepare a code
setting out the criteria according to which any
decision on the funding of civil legal services
is to be taken. This paper sets out for public
consultation the proposed Criteria. Please
read this document in conjunction with the
other supporting documentation, which is
also available at www.nilsc.org.uk




4 The Northern Ireland Funding Code
                                               Access to Justice | Northern Ireland Legal Services Commission




How to respond



When responding to this consultation                  Legal Services Commission’s website
document, please state whether you are                www.nilsc.org.uk This document will also be
responding as an individual or representing           made available in a wide range of alternative
the views of an organisation. If responding on        formats. Requests for alternative formats
behalf of an organisation, please make it clear       should again be made to the Consultation
whom the organisation represents and, where           Co-ordinator.
appropriate, how the views of the members
were assembled.                                       Please tell us if you know of others who
                                                      would be interested in receiving this
Please submit your response to this                   consultation document.
consultation by post, fax or email to:
                                                      Confidentiality and Complaints
Jill Herron                                           Information provided in response to this
Consultation Co-ordinator                             consultation, including personal information,
Northern Ireland Legal Services Commission            may be subject to publication or disclosure
2nd Floor, Waterfront Plaza                           in accordance with the Information access
8 Laganbank Road, Mays Meadow                         legislation (that is, the Freedom of Information
Belfast BT1 3BN                                       is Act 2000 [FOI] and the Data Protection Act
                                                      1998 [DPA]). If you want information that you
Email     jillherron@nilsc.org.uk
                                                      provide to be treated as confidential, it would
Facsimile 028 9040 8995
                                                      be helpful if you would explain to us why you
                                                      regard the information you have provided
Closing Date
                                                      as confidential. If we receive a request for
Responses must be received by Friday
                                                      disclosure of the information, we will take full
16th October 2009. We have extended
                                                      account of your explanation, but we cannot
the normal 12 week period to 16 weeks
                                                      give an assurance that confidentiality can be
to allow for the summer holiday period.
                                                      maintained in all circumstances. An automatic
                                                      confidentiality disclaimer generated by your
Miscellaneous
                                                      IT system, or included as a general statement
Additional copies of this consultation
                                                      in your fax cover sheet will not, of itself, be
document may be made without seeking
                                                      regarded as binding on the Northern Ireland
permission from the Northern Ireland Legal
                                                      Legal Services Commission and will be taken
Services Commission. Printed copies may
                                                      to apply, therefore, only to information in
be obtained by post by contacting the
                                                      your response for which confidentiality has
Consultation Co-ordinator. An electronic
                                                      been requested.
version is available on the Northern Ireland




                                                                         The Northern Ireland Funding Code 5
Access to Justice | Northern Ireland Legal Services Commission




The Northern Ireland Legal Services
Commission will process your personal
data in accordance with the DPA and, in
the majority of circumstances, this will
mean that your personal data will not be
disclosed to third parties.

If you have comments or complaints about
the way this consultation has been conducted,
these should be sent to:

Laura Davison
Business Manager, Policy and Service
Development.
Post       Northern Ireland Legal
           Services Commission
           2nd Floor, Waterfront Plaza
           8 Laganbank Road, Mays Meadow
           Belfast BT1 3BN
Email     lauradavison@nilsc.org.uk
Telephone 028 9040 8888
Facsimile 028 9040 8990

A copy of the consultation criteria being
used in this consultation is set out in Annex 2
of this document.




6 The Northern Ireland Funding Code
                                                Access to Justice | Northern Ireland Legal Services Commission




Executive Summary



This paper sets out, for public consultation,          • Chapter 5 sets out the specific criteria
the proposals relating to the setting of the             that will apply to Clinical Negligence cases
Criteria for the Northern Ireland Funding Code.          and deals with some of the responses to
The Code will be made up of two parts; Code              the previous consultation document in
Criteria (‘the criteria’) and Code Procedures            this area.
(‘the procedures’). In addition the Code will
be underpinned by detailed decision-making             • Chapter 6 deals with how Money Damages
guidance. A Regulatory Impact Assessment                 cases will be treated under the Funding Code.
on the Code has been circulated with this
paper also.                                            • Chapter 7 sets out the types of cases that
                                                         will fall under Section 8 Claims against
The following are the key features of the                Public Authorities.
consultation document chapters.
                                                       • Chapter 8 deals with the Conclusion to this
• Chapter 1 is a general introduction to                 paper. A general question on the Criteria is
  the Funding Code Criteria and sets this                also set out here.
  consultation in the context and
  development of earlier papers on the Code.           • Annex 1 lists the respondents to the
                                                         previous consultation document
• Chapter 2 provides information about                   ‘The Northern Ireland Funding Code:
  the General Funding Code and the levels                A Consultation Paper on the Proposals
  of service proposed, highlighting any                  for a Northern Ireland Funding Code’.
  differences from earlier consultations.
                                                       • Annex 2 Levels of Service Grid
• Chapter 3 sets out the criteria for dealing
  with Family cases.                                   • Annex 3 NI Funding Code Criteria

• Chapter 4 provides information on how                • Annex 4 Consultation Criteria
  the criteria should be applied to very high
  cost cases.




                                                                          The Northern Ireland Funding Code 7
Access to Justice | Northern Ireland Legal Services Commission




Chapter 1: Code in Context



1.1   The Northern Ireland Legal Services                  1.5   The responses received helped inform
      Commission (‘the Commission’) was                          the consultation document issued in
      established in October 2003 under                          November 2006 (‘The Northern Ireland
      Article 3 of the Access to Justice                         Funding Code, A Consultation Paper on
      (Northern Ireland) Order 2003                              Proposals for the Northern Ireland
      (‘the Order’).                                             Funding Code’.) This paper set out an
                                                                 introduction to the Code, the
1.2   In accordance with Article 15 of that                      Commission’s proposed approach to
      Order, the Commission is required to                       setting the criteria, and a copy of the
      prepare a Funding Code, setting out                        draft criteria.
      the criteria according to which any
      decision is to be taken as to:                       1.6   A total of 11 responses were received
                                                                 and these have helped to inform the
      a) whether to fund (or continue to fund)                   proposals set out in this paper. A list
         civil legal services for an individual                  of all those who responded is set out at
         for whom they be funded by the                          Annex 2 of this paper.
         Commission; and
                                                           1.7   The purpose of this paper is to
      b) if so, what services are to be funded                   illustrate the criteria the Commission
         for him.                                                are intending to adopt and to highlight
                                                                 any differences from our previous
1.3   This paper sets out for public                             consultations and the rationale for
      consultation the proposed Code Criteria.                   these differences.
      The document is also available on the
      consultations section of our web-site at             1.8   The Code Criteria will be supplemented
      www.nilsc.org.uk                                           by detailed guidance which will
                                                                 underpin the decision making
1.4   In April 2006 the Commission                               processes and by the related
      conducted an initial consultation on                       Procedures (which have also been
      the Code’s development, the exposure                       issued for Consultation).
      document entitled ‘The Development
      of the Northern Ireland Funding Code’                1.9   The objective of the Code is to define
      provided the Commission’s early                            criteria to ensure, as far as possible,
      thinking on various pivotal issues                         that cases which satisfy those criteria
      including the key objectives of the                        receive public funding from within
      Code, setting priorities for funding and                   the budget allocated by the Government.
      the proposed levels of service to replace                  The criteria are a vital tool to ensure
      the existing legal aid schemes.                            that public funds are spent more




8 The Northern Ireland Funding Code
                                              Access to Justice | Northern Ireland Legal Services Commission




      effectively to target social need and
      promote social inclusion particularly in
      an environment where the costs of legal
      aided cases are increasing year on year.

1.10 It is within this framework that flexibility
     of the Code is seen as its greatest
     strength, as it is through the application
     of different funding criteria to different
     case-types that public money for civil
     legal services can be directed to areas
     of greatest need. Under the new
     economic circumstances it is likely
     that legal need will alter and the
     Commission needs to be flexible
     enough to deal with these changes.




                                                                        The Northern Ireland Funding Code 9
Access to Justice | Northern Ireland Legal Services Commission




Chapter 2: General Funding Code and Levels of Service



2.1   The criteria in the General Funding Code             2.3   A grid explaining the new levels of
      will apply to all applications except                      service and when they will apply is
      to the extent that different criterion are                 included at Annex 2.
      specified for particular types of case.
      Section 4 of the Code criteria, for                  2.4   The definition of Legal Help, which is
      example, sets out the standard criteria                    set out at section 2.1 of the Code
      which will apply to all applications                       criteria, covers initial advice and
      under the Code. They include criteria to                   assistance beyond general information
      ensure that services can only be funded                    giving but excludes issuing or
      where they are within the scope of                         conducting court litigation. Legal Help
      the Order.                                                 replaces legal advice and assistance
                                                                 (‘Green Form’ scheme). The criteria to be
2.2   The levels of service or new public                        applied to this level of service are set
      funding schemes are also identified                        out at 5.2 of the Code criteria. Legal
      in the General Funding Code. In the                        Help may only be provided where there
      Commission’s previous consultation                         is sufficient benefit to the client, having
      document seven levels of service were                      regard to all the circumstances of the
      proposed. However taking account of                        matter, including the circumstances of
      the responses received to this                             the client to justify work being done.
      consultation and in line with the                          In addition Legal Help should not be
      position adopted in England and                            provided unless it is reasonable for the
      Wales the Commission now proposes                          matter to be funded out of civil legal
      to adopt four levels of service namely;                    services, having regard to any other
                                                                 sources of funding.
      i) Legal Help
                                                           2.5   The levels of service specific to family
      ii) Family Help (sub-divided into Family                   proceedings are Family Help Lower
          Help Lower and Family Help Higher)                     and Family Help Higher. These levels
                                                                 of service have changed since our
      iii) Legal Representation (sub-                            previous consultation and will be
           divided into Investigative Help                       explained in further detail in
           and Full Representation)                              Chapter Three.

      iv) Such other services as are authorised            2.6   Legal Representation will contain two
          by specific orders or directions from                  subsets, namely Investigative Help
          the Lord Chancellor                                    and Full Representation. The Code




10 The Northern Ireland Funding Code
                                              Access to Justice | Northern Ireland Legal Services Commission




      contains a separate set of criteria           2.9    Full Representation is a grant of Legal
      for each. A clear distinction exists                 Representation other than Investigative
      between Investigative Help and                       Help, and covers representation in legal
      Full Representation.                                 proceedings. It is only available were
                                                           the prospects of success are clear and
2.7   Investigative Help is only available                 can be estimated in one of the
      where the prospects of success are                   merit bands set out in the Code.
      unclear and require further investigation
      and would only apply to certain               2.10 In our previous exposure document the
      categories of case. It is proposed that            Commission asked for views as to the
      a certificate for Investigative Help would         appropriateness of creating Help at Court
      not cover the issue of proceedings                 as a level of service in the Code. Help at
      save where this was required either for            Court is primarily used in England and
      limitation purposes or to obtain essential         Wales in circumstances where the client
      pre-action discovery. Having a separate            is a defendant to mortgage possession or
      test for the investigative stage allows            other possession proceedings where
      additional criteria to be set for the Full         rent or mortgage arrears are not in
      Representation stage. Investigative Help           dispute. Many consultees were in favour
      may be available in a number of subject            of this level of service, and in particular
      areas most notably clinical negligence             in regard to its application to cases
      cases and other personal injury cases.             involving potential repossession of
      It is not available in family cases or             property. Admitted debt type proceedings
      a number of other subject areas.                   are however precluded from being
      Its purpose is to allow the conduct                funded under Schedule 2 of the
      of such investigations as are needed               Order. The Consultation document issued
      to determine the likely prospects of               in November 2006 confirmed that the
      success of the claim.                              Commission does not propose to
                                                         apply Help at Court as a level of
2.8   Investigative Help will be refused,                service; however as ‘help with housing
      under the General Funding Code if the              proceedings’ fall within the Lord
      client’s claim is primarily a claim for            Chancellor’s stated funding priorities,
      damages and has no significant wider               it was suggested that a Direction could
      public interest, unless a minimum                  be sought specifically authorising
      threshold of £5,000 has been reached in            funding in mortgage repossession cases.
      respect of the claim for damages. This             The Commission would intend to apply
      issue is further explored at paragraph 5.4.        to the Lord Chancellor to remove the




                                                                       The Northern Ireland Funding Code 11
Access to Justice | Northern Ireland Legal Services Commission




      exclusion on admitted debt proceedings                       urgency, be granted legal aid; on
      should that prove necessary to provide                       the basis of the information available,
      help at court as a level of service or a                     the Commission must be satisfied that
      pilot. It will also provide additional scope                 it is likely that the case will satisfy the
      when looking at how housing legal                            Code Criteria for Full Representation;
      services can be delivered in line with
      the priority set for housing within the                    • there must be insufficient time for an
      Funding Code.                                                application form to be submitted;

2.11 The economic climate and housing                            • unjustifiable delay must not be
     market have undergone considerable                            the reason for the need for
     change since our consultation in                              emergency representation.
     November 2006, however we remain
     of the view that Help at Court should                2.13 The fourth level of service the
     be provided as a pilot, rather than a                     Commission intends to adopt deals
     level of service. This will enable us                     with exceptional funding applications.
     to target specifically the area of                        The government relies upon exceptional
     mortgage repossession. The aim of the                     funding to meet any European
     pilot would be to provide legal aid                       Convention of Human Rights
     funding for informal advocacy, usually                    obligations which may arise in a
     by way of mitigation, in mortgage                         case which is otherwise outside the
     repossession cases.                                       scope of usual funding. Exceptional
                                                               funding (currently under the SEGP
2.12 Emergency representation will continue                    scheme) provides funding in certain
     to be available under the Funding Code                    circumstances for legal representation
     provided that the following conditions                    for the family of the deceased at
     are met:                                                  an inquest. The Minister has a wide
                                                               discretion to waive financial eligibility
      • the case concerned is within scope;                    limits. The Commission is empowered
                                                               to fund legal representation at the
      • it appears to the solicitor that the                   inquest in a prescribed set of
        applicant would be financially eligible                circumstances, for example where the
        for legal aid;                                         deceased died in prison or police
                                                               custody, during the course of police
      • it is in the interests of justice that                 arrest, search, pursuit or shooting. The
        the applicant should, as a matter of                   Commission has no authority to waive




12 The Northern Ireland Funding Code
                                                  Access to Justice | Northern Ireland Legal Services Commission




     financial eligibility limits. In all other
     instances the funding is granted by
     the Minister upon recommendation
     by the Commission.

2.14 The fourth level of service can also be
     used to fund pilot schemes such as the
     proposed Help at Court pilot aimed at
     providing informal advocacy in mortgage
     possession proceedings (see paragraph
     2.9 and 2.10 above).




                                                                           The Northern Ireland Funding Code 13
Access to Justice | Northern Ireland Legal Services Commission




Chapter 3: Criteria for Family Cases



3.1   The levels of service the Commission                       document were broadly supportive
      intends to adopt in regard to Family                       of such a proposal although some
      proceedings are;                                           consultees indicated certain
                                                                 reservations regarding the creation
      Legal Help which covers the initial                        of two separate levels of service
      meeting with the client and any follow                     for an area that may not have the
      up advice. It also covers advice and                       infrastructure to support this. The
      assistance in divorce proceedings.                         Commission understands that
                                                                 Northern Ireland has insufficient
      Family Help Lower which facilitates                        mediators to allow for mandatory pre-
      more substantial advice, assistance and                    proceedings mediation at this time.
      negotiation to resolve disputes. It may                    However the Commission is keen to
      be used to secure early resolution of                      promote effective alternatives to the
      a family dispute or to obtain a necessary                  court process in family and children
      consent order following settlement.                        cases in conjunction with others and
                                                                 recognises that mediation must be an
      Family Help Higher will be appropriate                     effective and real alternative in some
      when it becomes necessary to issue                         cases. Therefore while not intending
      proceedings other than for the purpose                     to introduce the above levels of
      of obtaining a consent order (or, in the                   service as separate and discrete levels;
      case of a respondent the proceedings                       mediation will continue to be available
      have already been issued) with a view                      as a disbursement.
      to securing the early resolution of a
      family dispute. Family Help Higher does              3.3   The primary aim of funded family
      not cover preparation for, or                              services is to help people resolve their
      representation at, any final hearing.                      disputes concerning children and family
                                                                 relationships at the earliest opportunity,
      Legal Representation covers                                in the most appropriate way and where
      representation in all other contested                      possible without litigation. This is in line
      Family Proceedings.                                        with statutory objectives to reduce the
                                                                 proportion of disputes resolved by
3.2   The Commission had previously                              recourse to the courts. However, the
      signalled its commitment to Mediation                      Commission recognises there are
      and its intention to adopt Family                          many family cases where contested
      Mediation and Help with Mediation                          proceedings are unavoidable and
      as two separate levels of service. The                     indeed essential to protect children or
      responses received to the Consultation                     adults from harm or where all other




14 The Northern Ireland Funding Code
                                              Access to Justice | Northern Ireland Legal Services Commission




      attempts at resolving the dispute have               (Higher) to replace General Family Help.
      failed. These cases will be progressed               The Commission also proposes to adopt
      having regard to the ‘no delay’ principle.           this approach and the criteria set out in
                                                           Section 11 reflect this.
3.4   The Commission is also cognisant of the
      fact that family cases are not about          3.6    Family Help Lower is a pre-proceedings
      winning and losing, but are about                    level of service most suitable for
      obtaining the most appropriate outcome               private law cases in the Family
      for all the parties. Whereas many non-               Proceedings Court. Family Help (Lower)
      Family cases result in all or nothing                enables provision of more substantial
      results for one party or the other, the aim          advice, assistance and negotiation to
      of Family Funding is to achieve results              help resolve disputes than would be
      which are fair and acceptable to all                 available under Legal Help. It should
      parties where possible. The prospects                be used to secure, where possible, the
      of success criterion do not apply to                 early resolution of a family dispute or
      Special Children Order proceedings.                  to obtain a Consent Order following
      These cases will be progressed under the             settlement. Family Help Lower will not
      current system of ‘non means, non                    be appropriate when the other side has
      merits’ and include Articles 50, 62, 63              issued proceedings or is refusing to reply
      and 64 of the Children (Northern Ireland)            to correspondence. In order for a private
      Order 1995. For other public law cases               law case to progress to Family Help
      the prospects of success criterion                   Lower the case must satisfy the cost
      applies only if the client is making or              benefit test; Family Help will be
      supporting an application or appeal.                 refused unless the benefits to be gained
                                                           from the help provided justify the
3.5   The criteria previously consulted on in              likely costs, such that a reasonable
      the Family levels of service included                paying client would be prepared
      General Family Help which reflected the              to proceed in all the circumstances.
      position in England and Wales at the                 The case must also be a ‘significant
      time. The intention behind the proposed              family dispute’. This is defined in the
      introduction of General Family Help                  England and Wales guidance as a dispute
      was to encourage the earlier resolution of           which ‘if not resolved may lead to family
      cases and to include greater use of                  proceedings and for which legal advice
      mediation prior to the issue of                      and assistance is necessary to enable
      proceedings. Under recent reforms                    the client to resolve the issues.’ The
      in England and Wales the Legal Services              Commission also proposes to adopt
      Commission has adopted the use of                    this approach.
      Family Help (Lower) and Family Help




                                                                       The Northern Ireland Funding Code 15
Access to Justice | Northern Ireland Legal Services Commission




3.7   An important initiative is also                            the dispute without recourse to contested
      being brought forward by judges in the                     proceedings through negotiation or other
      Family Division in Northern Ireland.                       appropriate avenues. Family Help Higher
      This initiative is modelled on the Public                  may also be refused if it is deemed more
      Law Outline (PLO) currently being                          appropriate for the client to be assisted
      introduced in England and Wales.                           by way of Legal Help or Family Help
      The PLO scheme aspires to streamline                       Lower. As Family Help Lower can cover
      core processes to increase the focus on                    all pre-proceedings work, Family Help
      the needs of the child, to target the                      Higher may only be justified where it
      effective use of expert evidence, to                       is necessary to issue proceedings
      identify early in proceedings potential                    (other than for a Consent Order) and all
      issues of dispute and to ensure there is                   other reasonable avenues have been
      strong judicial case management                            pursued, or where proceedings are
      throughout the proceedings. It is hoped                    already in existence. Where Legal Help
      that the PLO should lead to a reduction                    or Family Help Lower are available they
      in the number of days proceedings last                     should be used (where possible) to
      through the tighter case management                        identify the principal issues both by
      at all levels of Court and focusing at an                  way of attendance on the client and if
      earlier stage on the areas of dispute.                     possible by contact and negotiations
      Any pre-proceedings work carried out                       with the other party.
      by the solicitor under the proposed PLO
      will be administered under the Family               3.9    Family Help Higher can only be provided
      Help Lower level of service.                               when the cost-benefit criterion is met
                                                                 and the reasonable client approach
3.8   Family Help Higher would allow the                         applies. In effect, funding will not be
      issue of proceedings but would not allow                   obtained unless, on the evidence
      the conduct of a final hearing. It is                      available, the benefits to be gained
      envisaged that this level of service                       from representation for the client justify
      would apply to private law proceedings                     the likely costs such that a reasonable
      as in the majority of public law                           paying client would be prepared to
      proceedings a Full Representation                          proceed in all the circumstances.
      certificate will be more appropriate once                  The sufficient benefit test imports an
      proceedings have been issued. Family                       objective of reasonableness to the
      Help Higher may be refused unless                          proportionality of the costs and
      attempts have first been made to resolve                   benefits involved.




16 The Northern Ireland Funding Code
                                            Access to Justice | Northern Ireland Legal Services Commission




3.10 It is intended that the Northern Ireland
     Funding Code will encourage the
     approach that contested litigation
     in family cases should be seen as a
     matter of last resort. However, as
     previously mentioned the Commission
     will have due regard to the ‘no delay’
     principle in Children’s Order cases.
     Therefore Family Help Higher or Legal
     Representation will not be refused on the
     grounds of failure to attempt settlement
     if the client is genuinely and urgently in
     need of representation; or that any delay
     will cause a significant risk of a
     miscarriage of justice, or unreasonable
     hardship to the client; or irretrievable
     problems in handling the case; or there
     will be a risk to the life, liberty or
     physical safety of the client or his
     or her family.




                                                                     The Northern Ireland Funding Code 17
Access to Justice | Northern Ireland Legal Services Commission




Chapter 4: High Cost Cases Criteria



4.1   Section 6 of the Criteria reflects the               4.4   The Legal Services Commission in
      Commission’s proposals on how the                          England and Wales refer cases to its
      Criteria should deal with very expensive                   Special Cases Unit when it is considered
      cases. The respondents to the Consultation                 that likely costs to disposal will exceed
      document welcomed the proposed                             £25,000 (note that this figure refers to
      establishment of a Special Cases Unit to                   likely costs to settlement or other
      deal with very expensive cases (although                   disposal and includes counsel’s fees,
      one respondent felt the establishment                      disbursements and any likely uplift or
      of such a unit was unnecessary and                         enhancement on profit costs but
      would just lead to increased                               excludes VAT) or that potential costs
      administrative costs).                                     to trial will exceed £75,000 (again this
                                                                 figure includes counsel’s fees,
4.2   The Legal Services Commission in                           disbursements and any likely uplift
      England and Wales have established                         or enhancement on profit costs but
      a Special Cases Unit whose                                 excludes VAT). The Commission
      responsibilities include dealing with                      proposes to use the same thresholds
      high cost cases, multi party actions                       in this jurisdiction and these met
      and applications for Litigation Support.                   with broad agreement from respondents.
      The Unit’s main functions are to monitor                   As outlined in the previous consultation
      the most expensive cases funded as part                    document this approach would require
      of the Community Legal Service,                            from providers early identification of
      to ensure that such cases are subject                      cases with the potential to involve very
      to appropriate financial controls and to                   high costs. In such cases it may be
      administer the central budget set by                       appropriate to require submission of a
      the Lord Chancellor for the funding of                     ‘costed case plan’. It is likely that these
      very expensive cases.                                      cases will be subject to a higher
                                                                 and more frequent level of scrutiny
4.3   Although the Commission may not have                       by the Commission.
      a separate Special Cases Unit in place
      when the Funding Code is first                       4.5   A costed case plan is a tool for case
      introduced it is intended to establish                     management. It is created by the
      such a unit as soon as practicable. Our                    solicitor after thorough analysis,
      experience has shown that a small                          planning and the identification of
      number of very expensive cases can                         the objectives to be achieved. It
      consume a large proportion of the                          provides a timetable for the case that
      Legal Aid budget.                                          identifies the key events and specifies




18 The Northern Ireland Funding Code
                                               Access to Justice | Northern Ireland Legal Services Commission




      the work to be done, the resources
      needed to do it and when the resources
      will be needed. It is costed, specifying
      the cumulative cost of the work at
      specified intervals, at the key events
      and overall. It will normally include
      more detail for the near future and
      progressively less detail for dates
      further away. Case plans will therefore
      identify stages in a case and funding will
      be authorised stage by stage. Firms are
      therefore not expected at the start of the
      case to provide precise costings of the
      whole case.

4.6   The purpose of the costed case plan is
      to aid decisions on whether proposals
      for progressing litigation are satisfactory
      and to monitor and control the case.
      It provides information to enable an
      effective assessment of the cost
      benefit and risk.

4.7   The requirement to submit costed case
      plans in cases which appear to fall into
      the thresholds for very high cost cases
      will also act as a useful forecasting
      tool to enable the Commission to plan its
      expenditure accordingly for operation
      under a controlled budget environment.




                                                                        The Northern Ireland Funding Code 19
Access to Justice | Northern Ireland Legal Services Commission




Chapter 5: Clinical Negligence Cases



5.1   In our previous Consultation document                      in this area, in house research
      we proposed that the definition of                         was undertaken by the Commission
      “clinical negligence” proceedings                          to ascertain the impact of applying the
      should be as follows:                                      General Funding Code ratios to clinical
                                                                 negligence cases compared to the
      a) a claim for damages in respect of                       impact of lower alternative ratios
         an alleged breach of duty of care                       (this research paper is available on our
         or trespass to the person committed                     website www.nilsc.org.uk). The General
         in the course of the provision of                       Funding Code cost benefit ratios and
         clinical or medical services (including                 alternative ratios used for testing are
         dental or nursing services); or                         outlined below:

      b) a claim for damages in respect                          Cost Benefit - Quantifiable Claims
         of alleged professional negligence                      If the claim is primarily a claim for
         in the conduct of such a claim.                         damages by the client and does not
                                                                 have a significant wider public interest,
      The majority of respondents accepted                       Full Representation will be refused
      this as a suitable and adequate                            unless the following cost benefit criteria
      definition and the Commission                              are satisfied:
      has therefore decided to adopt
      this definition.                                           1) If prospects of success are very good
                                                                    (80% or more), likely damages must
5.2   The criteria previously consulted on in                       exceed likely costs;
      this area reflected the approach that
      the general funding code cost benefit                      2) If prospects of success are good
      ratios should be applied to clinical                          (60%-80%), likely damages must
      negligence cases. Several respondents                         exceed likely costs by a ratio of 2:1;
      submitted that a ‘special case’ exists
      for the application of a different cost                    3) If prospects of success are moderate
      benefit test other than that of                               (50%-60%), likely damages must
      the General Funding Code. Respondents                         exceed likely costs by a ratio of 4:1.
      submitted that a more relaxed cost
      benefit ratio should be applied as                         Alternative Cost Benefit ratios
      clinical negligence cases can be                           If prospects of success are good
      very complex and generally have higher                     (60%-80%) a 1.5:1 ratio is required.
      costs than most other categories of                        For cases falling into the 50-60%
      cases. To help inform decision making                      range, a 2.1 ratio is required.




20 The Northern Ireland Funding Code
                                              Access to Justice | Northern Ireland Legal Services Commission




         The main finding of this research,                still sufficiently important that a
         however, was that the use of                      reasonable client would litigate.
         alternative lower ratios did not
         allow significantly more cases to          5.5    Investigative Help will be refused, under
         pass the alternative cost benefit test.           the General Funding Code, if the
                                                           client’s claim is primarily a claim for
5.3   The Commission is in favour of                       damages and has no significant wider
      introducing cost benefit ratios for                  public interest, unless a minimum
      quantifiable cases. Non-quantifiable                 threshold of £5,000 has been reached in
      cases including those in priority areas              respect of a claim’s level of damages.
      have less strict tests. Therefore the                Several respondents to the Commission’s
      Criteria reflect the intention to apply              previous consultation referred to the
      the General Funding Code criteria to                 proposed £5,000 minimum damage
      clinical negligence cases. It should                 threshold as being too high. They further
      also be noted that the Legal Services                submitted that the level of damages
      Commission in England and Wales                      may be extremely difficult to assess at
      applies the General Funding Code                     the commencement of any given action
      cost benefit ratios to clinical negligence           and suggested a threshold of £1,000 may
      cases. Therefore as a result of this                 be more appropriate in clinical
      research and the other factors mentioned             negligence cases. The Commission’s
      it remains the Commission’s intention                rationale behind this threshold is to
      to apply the General Funding Code                    ensure public funds are not used to
      cost benefit criteria to clinical                    investigate cases were the likely
      negligence cases.                                    damages are modest in size compared
                                                           to the costs involved (criterion 5.5.2).
5.4   For example if the prospects of success              Given the increased cost in clinical
      are only a little over 50%, funding should           negligence cases the Commission
      only be granted if the benefits to the               submits that a threshold of £5,000 is
      client will be really substantial such               appropriate. This is considered justified
      that the likely costs are justified. By              in order to control the costs of
      contrast, if prospects of success are                investigating the potential merits of
      very high and costs are almost certain               an uncertain claim of limited value.
      to be recovered from the other side, a
      private paying client would be more
      prepared to litigate over benefits which
      were more modest in extent, but were




                                                                       The Northern Ireland Funding Code 21
Access to Justice | Northern Ireland Legal Services Commission




Chapter 6: Money Damages Criteria



6.1   In the previous Funding Code                               stage. Furthermore it would appear there
      Consultation document the Commission                       have been historic profitability issues
      confirmed the importance of continuing                     with a number of insurers making
      the support for money damages and                          significant losses on ATEI.
      personal injury cases to ensure access
      to justice for those members of society              6.5   Therefore under a CFA model an
      of limited means to enable them                            individual in Northern Ireland may
      to enforce their rights in the same                        easily find a solicitor to represent them
      manner as those who can afford to                          but could potentially be unable to
      litigate privately.                                        acquire ATEI to insure them against
                                                                 the risk of adverse cost. This would have
6.2   The Commission has therefore                               the likely effect of deterring most of
      considered the various alternatives that                   those who are currently eligible for
      exist to continue the support for funding                  legal aid and would effectively remove
      of money damages cases in Northern                         money damages claims from the legal
      Ireland following the full commencement                    aid system. Premiums could be so
      of the Access to Justice (Northern                         high as to exclude a large proportion
      Ireland) Order 2003.                                       of the population, leaving a large
                                                                 number of people without access
6.3   In England and Wales money damages                         to justice.
      cases are not covered under the Code
      but dealt with by way of Conditional Fee             6.6   Another alternative scheme for
      Agreements (CFA), also known as                            funding money damages cases could
      ‘no win, no fee’. Under the CFA model                      be the introduction of an Additional
      individuals have to pay for their                          Legal Aid System model (Northern
      solicitors fees if the case is lost.                       Ireland Additional Legal Aid Scheme).
      However they can limit this risk by                        This would require the development of
      purchasing After the Event Insurance                       a ring fenced fund to support money
      (ATEI), however, even if cases are won                     damages claims.
      not all costs may be covered.
                                                           6.7   The Commission has explored various
6.4   CFA models require ATEI. Currently there                   alternatives to the funding of money
      are no ATEI providers in Northern                          damages cases. NIALAS has its
      Ireland. The Commission understands                        attractions as an alternative option,
      that no ATEI provider in England                           however, current legislation may
      and Wales will offer a commitment to                       preclude such a scheme and an
      enter into Northern Ireland at this                        evidence based case would need




22 The Northern Ireland Funding Code
                                               Access to Justice | Northern Ireland Legal Services Commission




      to be presented to the Lord Chancellor         6.10 The implementation of the Northern
      to enable consideration of a change to              Ireland legislation to develop Civil
      current legislation.                                Legal Services through the introduction
                                                          of a Funding Code and the requirement
6.8   This approach would require claimants               to demonstrate value for money within
      and their lawyers to apply to the fund for          a capped budget is likely to impact
      support and pay a registration fee. If the          significantly on Legal Aid funding of
      case is lost the fund pays the losing               money damages cases.
      lawyers disbursements and a percentage
      (perhaps somewhere between 50% and             6.11 Under the Code money damages cases
      75%) of the profit costs of the losing              are not a priority area, however they will
      lawyers and some or all of the winners              still be catered for providing they meet
      cost. If the case is won the loser pays the         the relevant Criteria under Section 5 of
      claimant’s lawyers costs in the normal              the Funding Code.
      way and a percentage of the damages
      recovered are paid into the fund to            6.12 The requirement of the Access to Justice
      support future cases.                               (Northern Ireland) Order 2003 to
                                                          introduce a funding code means that ‘no
6.9   The advantage of such an approach                   change’ for legal aid in money damages
      is that by introducing such a scheme                cases is not an option.
      while initially retaining Legal Aid within
      the Funding Code, access to justice could      6.13 The Commission’s aim is to balance
      be maintained and ultimately widened.               the cost of providing Civil Legal Services
      In due course Legal Aid for money                   in respect of money damages cases with
      damages could be taken fully out of                 the need to ensure that only merited
      scope of the Funding Code and processed             cases are proceeded with in the
      completely through NIALAS. However the              most cost effective manner, while
      NIALAS model would be particularly                  meeting the priorities set for the
      sensitive to the level of successful                Commission by government.
      cases taken and if this is not closely
      monitored the fund could move into             6.14 However the Commission will keep the
      deficit. The model would also be                    issue of funding money damages cases
      sensitive to the level of damages paid              under review and will monitor the impact
      back into the fund and if this is too low           of the Funding Code in this area after
      it could also have serious implications             implementation.
      on the success of the fund. There is also
      a question of finding initial pump priming
      funding to introduce a NIALAS.




                                                                        The Northern Ireland Funding Code 23
Access to Justice | Northern Ireland Legal Services Commission




Chapter 7: Claims against Public Authorities



7.1      Section 8 of the Criteria deals with                            assault, battery, trespass, wrongful
         claims against public authorities. We                           arrest and false imprisonment by the
         suggest that specific criteria should be                        Police Service of Northern Ireland
         set for actions against public authorities.                     (PSNI), Ministry of Defence (MOD) and
                                                                         Northern Ireland Prison Service.
7.2      Cases falling under this section of the                         However after further consideration of
         Code would include those which alleged                          the matter it is now proposed that
         a serious wrong doing, abuse of position                        policy be brought into line with England
         of power, or a significant breach of                            and Wales and that these types of tort
         human rights by a public authority.                             claims would fall under Section 8. The
         In order to show that a cases concerns                          Commission would be keen to hear
         serious wrongdoing or abuse of power                            consultees views on this matter.
         it is necessary to show that the case
         involves something more than a                           7.5    While many actions taken under this
         straightforward claim against a public                          section are taken in the context
         authority, such as a simple claim                               of claims for damages, a significant
         for clinical negligence or breach                               number of these cases are often not
         of contract.                                                    solely concerned with recovery
                                                                         of damages. To reflect this it would
7.3      ‘Serious wrongdoing’ must involve                               not be appropriate to apply the
         either allegations of deliberately                              minimum damages level contained in
         causing harm to the client by behaviour                         the General Funding Code to claims
         by a public authority which goes well                           against the public authorities at the
         beyond simple liability for negligence                          Investigative Help stage.
         and breach of contract and which
         couldobjectively be considered to be                     7.6    Another example of a case that would
         really serious.1                                                come under Section 8 would be an
                                                                         action against a Health and Social Care
7.4      In our previous consultation we                                 Trust alleging child abuse whilst in care.
         had stated that it was not intended to
         include cases involving claims of




1
    Legal Services Commission in England & Wales Decision Making Guidance (www.legalservices.gov.uk)

24 The Northern Ireland Funding Code
                                                              Access to Justice | Northern Ireland Legal Services Commission




Chapter 8: Conclusion



8.1      Article 15(2)2 of the Order sets out the                      8.3     When finalising these Criteria the
         factors that the Commission must give                                 Commission has taken cognisance
         consideration to when setting out the                                 of responses to the previous
         criteria, to include the likely cost and                              consultations and also conducted
         benefit involved in granting funding to                               further research on various issues to
         a case and also the prospects of success                              help inform our thinking in these areas.
         for that case. It is not the case that
         every factor has to be reflected in the                       8.4     Under the current operational
         criteria for every case-type. As can be                               arrangements expenditure on Legal Aid
         seen from the Code, specific criteria                                 is demand led. One of the main aims
         apply to particular areas, such as                                    of the reform proposals for legal aid
         housing and judicial review. These                                    is the need to control legal aid
         are among the case-types that the                                     spending. The Code Criteria will be a
         Commission has put forward as                                         key mechanism in achieving this, along
         priorities. In terms of funding of the                                with the use of forecasting tools and
         priority areas, the Code will not                                     standard fees.
         guarantee help in all circumstances
         for priority case-types. Rather the                           8.5     The Commission will closely monitor
         Criteria, in these instances, will be                                 the success of the various mechanisms
         different and generally easier to                                     used to control the budget, particularly
         satisfy than for other cases.                                         during the years of initial operation of
                                                                               the Code. However, allowance will have
8.2      The Code will operate to target                                       to be made for the large numbers of
         resources to those most in need. It aims                              cases granted before the Code is
         to do so by targeting funding on the                                  implemented and which may take
         strongest cases and in particular to                                  some considerable time to conclude.
         strong cases in priority areas.



2
    Article 15(2) In settling the criteria to be set out in the code the Commission shall consider the extent to which they ought to
    reflect the following factors:
    a) the likely cost of funding the services and the benefit which may be obtained by their being provided,
    b) the availability of sums in the fund established under Article 11(1) for funding civil legal services and (having regard to
        present and likely future demands on that fund) the appropriateness of applying them to fund the services,
    c) the importance of the matters in relation to which the services would be provided for the individual,
    d) the availability to the individual of services not funded by the Commission and the likelihood of his being able to avail
        himself of them,
    e) if the services are sought by the individual in relation to a dispute, the prospects of success in the dispute,
    f) the conduct of the individual , in connection with civil legal services funded by the Commission (or an application for
        funding) or in, connection with any proceedings,
    g) the public interest, and
    h) such other factors as the Lord Chancellor may by order require the Commission to consider.

                                                                                           The Northern Ireland Funding Code 25
Access to Justice | Northern Ireland Legal Services Commission




8.6   It must also be borne in mind that
      securing value for money in publicly
      funded legal services is a shared
      responsibility between all the parties
      involved in the provision of these
      services - that is, the Commission,
      providers of legal services, people
      who apply for legal aid and the Courts.

8.7   It is within this framework that the
      flexibility of the Code is seen as
      its greatest strength, as it is through
      the application of different funding
      criteria to different case-types that
      public money for civil legal services
      can be directed to areas of greatest need.

8.8   The Code criteria are stringent and
      rigorous so that weaker claims can
      be excluded from the funding scheme
      more effectively than under the current
      system. The Code will facilitate robust
      and consistent decision making against
      publicly available transparent criteria.

8.9   The Commission is very aware of
      the impact of its present activities and
      the potential impact of reform of Legal
      Aid and it is committed to full and open
      consultation on these matters.




26 The Northern Ireland Funding Code
                                                Access to Justice | Northern Ireland Legal Services Commission




Key Question for Consultation



Do you have any comments on any of these
criteria? In particular do you think any of
the criteria may cause practical difficulties
in meeting legal needs and administering
legal aid?




                                                                         The Northern Ireland Funding Code 27
Access to Justice | Northern Ireland Legal Services Commission




Annex 1

Respondents to Previous Consultation

The details of all those who responded to ‘The
Northern Ireland Funding Code: A Consultation
Paper on Proposals for the Northern Ireland
Funding Code’ are as follows:

•   Action Against Medical Accidents
•   Advice NI
•   Association of Personal Injury Lawyers
•   Belfast Solicitors Association
•   Children’s Law Centre
•   Citizens Advice Bureau
•   Housing Rights
•   Law Centre
•   MENCAP
•   NI Housing Executive
•   Patrick J Mullarkey (Campbell Fitzpatrick)




28 The Northern Ireland Funding Code
                                                             Access to Justice | Northern Ireland Legal Services Commission




Annex 2

Levels of Service Grid

                              Civil Business Area                          Court Jurisdiction
                              Family           Family           Non-      FPC         FCC,    Means                      Certificate
                              (Private)        (Public)         Family    Magistrates County, Test
                                                                                      High
                                                                                      Court

    Legal Help                      Y                Y               Y         N/A           N/A      Existing                N
                                                                                                      Green
                                                                                                      Form test

    Family Help:

    Lower                           Y                Y              N/A         Y              Y      Existing                Y
    Does not cover                                                                                    ABWOR
    issuing of
    proceedings

    Higher                          Y                N              N/A         Y              Y      ABWOR                   Y
    Covers issuing                                                                                    if FPC/
    of proceedings                                                                                    Magistrates,
    but not final                                                                                     New CLA
    contested hearing                                                                                 test if FCC/
                                                                                                      County or
                                                                                                      above

    Legal                           Y                Y               Y          Y              Y                              Y
    Representation:

    Investigative                 N/A              N/A               Y         N/A             Y      New CLA test            Y
    Help3

    Full                            Y                Y               Y          Y              Y      New CLA test            Y
    Representation4                                                                                   if in County
                                                                                                      Court or
                                                                                                      above but
                                                                                                      ABWOR test
                                                                                                      if in FPC/
                                                                                                      Mag Court
3
    Granted if prospects of success are unclear
4
    A grant of legal representation other than Investigative Help             KEY Y - Yes          N - No     N/A - Not Applicable
                                                                                      The Northern Ireland Funding Code 29
Access to Justice | Northern Ireland Legal Services Commission




Annex 3

Northern Ireland Funding Code
Criteria
Contents
Part 1 - Criteria                                         Section 5 - The General Funding Code
Section 1 - Levels of Service                               5.1 Application of General Funding Code
  1.1 Levels of Service Available                           5.2 Criteria for Legal Help
  1.2 Representation                                        5.3 Standard Criteria for Legal
  1.3 Disbursements                                               Representation
                                                            5.4 Emergency Representation
Section 2 - Definitions                                     5.5 Criteria for Investigative Help
  2.1 Levels of Service                                     5.6 Criteria for Full Representation
  2.2 Case Categories                                       5.7 Criteria for Other Services
  2.3 Merits, Costs and Damages
  2.4 Other Definitions                                   Section 6 - Very Expensive Cases
                                                            6.1 Scope
Section 3 - Case Categories                                 6.2 Relevant Criteria
  3.1 The General Funding Code                              6.3 The Costed Case Plan
  3.2 Disputed Categories                                   6.4 Affordability
  3.3 Mixed Claims                                          6.5 Top Priority Cases
  3.4 Excluded Proceedings
  3.5 Guidance                                            Section 7 - Judicial Review
  3.6 Foreign Orders and Judgments                          7.1 Scope
                                                            7.2 Criteria for Investigative Help
Section 4 - Standard Criteria                               7.3 Criteria for Full Representation
  4.1 Scope Of This Section                                 7.4 Pre-leave Criteria
  4.2 Northern Ireland Law                                  7.5 Post-leave Criteria
  4.3 Excluded Services
  4.4 Directions on Scope                                 Section 8 - Claims against Public Authorities
  4.5 Identity of Client                                    8.1 Scope
  4.6 Identity of Supplier                                  8.2 Criteria for Investigative Help
  4.7 Contract Scope                                        8.3 Criteria for Full Representation
  4.8 Procedures
  4.9 Financial Eligibility                               Section 9 - Clinical Negligence
  4.10 Conduct                                              9.1 Scope
                                                            9.2 Complaint Scheme




30 The Northern Ireland Funding Code
                                            Access to Justice | Northern Ireland Legal Services Commission




Section 10 - Housing                              Section 13 - Immigration
  10.1 Scope                                        13.1 Scope
  10.2 Criteria for Investigative Help              13.2 Investigative Help
  10.3 Criteria for Full Representation -           13.3 General Funding Code
        Possession Cases                            13.4 Prospects of Success
  10.4 Criteria for Full Representation -           13.5 Cost Benefit
        Other Housing Case
                                                  Section 14 - Quasi-Criminal Proceedings
Section 11 - Family                                 14.1 Scope
  11.1 Scope                                        14.2 Investigative Help
  11.2 Criteria for Family Help                     14.3 General Funding Code
  11.3 Criteria for Family Help (Higher)            14.4 Interests of Justice
  11.4 Legal Representation in
        Family Proceedings                        Section 15 - Withdrawal of Funding
  11.5 Criteria for Special Children                15.1 Scope
        Order Proceedings                           15.2 Criteria No Longer Satisfied
  11.6 Related Proceedings                          15.3 Reasonableness
  11.7 Criteria for other Public Law                15.4 Investigations
        Children Cases                              15.5 Other grounds
  11.8 Domestic Violence Proceedings
  11.9 Private Law Children Cases
  11.10 Financial Provision and
        Other Proceedings
  11.11 Child Abduction Cases
  11.12 Registration of Foreign Orders
        and Judgments

Section 12 - Mental Health
  12.1 Scope
  12.2 Investigative Help
  12.3 General Funding Code
  12.4 Reasonableness




                                                                     The Northern Ireland Funding Code 31
Access to Justice | Northern Ireland Legal Services Commission




The Northern Ireland Funding Code
(Access to Justice (Northern Ireland) Order 2003)


This Code has been prepared in accordance
with Article 15 of the Access to Justice
(Northern Ireland) Order 2003 (“the Order”).
Part I of the Code contains Criteria for
deciding whether to fund or continue to
fund services. A revised version of Part I will
only come into force if approved by the Lord
Chancellor and a resolution of each House of
Parliament, or under the emergency procedure
set out in Article 16(7) of the Order. Part II
of the Code contains Procedures. A revised
version of Part II will come into force when
approved by the Lord Chancellor and laid
before Parliament.




32 The Northern Ireland Funding Code
                                                             Access to Justice | Northern Ireland Legal Services Commission




The Funding Code



Part 1 - Criteria                                                    1.3     Disbursements
                                                                             Guidance or contracts may specify
Section 1 Levels of Service                                                  what items may or may not be charged
                                                                             as disbursements under each level
1.1      Levels of Service Available                                         of service. Costs of or expenses in
         In funding Civil Legal Services under                               relation to treatment, therapy, training
         the Order the Commission will fund only                             or other interventions of an educative
         the following levels of service, subject                            or rehabilitative nature may not be
         to the provisions of the Order, orders,                             charged as disbursements under any
         regulations and directions made under                               level of service, unless authorised by
         the Order, these criteria and the Funding                           specific orders or directions from the
         Code Procedures:                                                    Lord Chancellor.

         1. Legal Help.                                              Section 2 Definitions

         2. Family Help - this can either be                         2.1     Levels of Service
            Family help (Lower) or Family                                    Note: Nothing in these definitions
            Help (Higher).                                                   limits the power of the Commission
                                                                             to place conditions or limitations on
         3. Legal Representation - this                                      any grant.
            can be either Investigative Help
            or Full Representation.                                              “Legal Help” is a level of service
                                                                                 the grant of which authorises Civil
         4. Such other services as are authorised                                Legal Services other than:
            by specific orders or directions from
            the Lord Chancellor including                                        i) The provision of general
            Statutory Exceptional Grants.                                           information about the law and
                                                                                    legal system and the availability
1.2      Representation                                                             of legal services (except where
         Legal Representation will be funded                                        such provision is incidental to the
         only in relation to proceedings for which                                  provision of help in a specific case).
         representation may be funded in
         accordance with Article 12(A)5 and                                      ii) Issuing or conducting court
         paragraph 2 of Schedule 2 to the Order.                                     proceedings.




5
    Article 12A was inserted into the 2003 Order by the Legal Aid (Northern Ireland) Order 2005, Article 12A of the 2003
    Order is at present un-commenced.

                                                                                         The Northern Ireland Funding Code 33
Access to Justice | Northern Ireland Legal Services Commission




          iii) Representation or instructing a                   is contemplating taking proceedings.
               legal representative in proceedings.              This includes the following:

          iv) The provision of mediation or                         i) All such help as is usually given by
              arbitration (but this does not                           a person providing representation
              prevent legal help being given in                        in proceedings, including steps
              relation to mediation or arbitration                     preliminary or incidental
              or covering payment of a mediator’s                      to proceedings.
              or arbitrator’s fees as a disbursement).
                                                                    ii) All such help as is usually given
      “Family Help” is a level of service                               by such a person in arriving at or
      the grant of which authorises help in                             giving effect to a compromise
      relation to a Family Dispute including                            to avoid or bring to an end
      assistance in resolving that dispute                              any proceedings.
      through negotiation or otherwise.
      Family Help covers all services within                     Legal representation does not include
      the scope of either Legal Help or Legal                    the provision of mediation or arbitration
      Representation other than preparation                      (but this does not prevent help being
      for or representation at a contested                       given in relation to mediation or
      final hearing or appeal.                                   arbitration, or the payment of
                                                                 a mediator’s or arbitrator’s fees as
      “Family Help (Lower)” means Family                         a disbursement).
      Help which is limited to exclude issue
      of proceedings or representation in                           • “Investigative Help” means
      proceedings other than help in obtaining                        Legal Representation which is
      a consent order following settlement of a                       limited to investigation of the
      Family Dispute.                                                 strength of a proposed claim.
                                                                      Investigative Help includes the
      “Family Help (Higher)” means a grant                            issue and the conduct of
      of Family Help other than Family                                proceedings only so far as
      Help (Lower).                                                   necessary to obtain disclosure of
                                                                      relevant information or to protect
      “Legal Representation” is a level of                            the client’s position in relation to
      service the grant of which authorises                           any urgent hearing or time limit for
      legal representation for a party                                the issue of proceedings.
      to proceedings or for a person who




34 The Northern Ireland Funding Code
                                            Access to Justice | Northern Ireland Legal Services Commission




      • “Full Representation” means a grant                 a) the Matrimonial Causes
        of Legal Representation other than                     (Northern Ireland) Order 1978
        Investigative Help.
                                                            b) the Inheritance (Provision for
2.2   Case Categories                                          Family and Dependants)
      Clinical Negligence Proceedings                          (Northern Ireland) Order 1979
      means proceedings which include:
                                                            c) the Adoption (Northern Ireland)
        i) a claim for damages in respect of                   Order 1987
           an alleged breach of duty of care or
           trespass to the person committed                 d) the Magistrates Courts Rules
           in the course of the provision of                   (Domestic Proceedings)
           clinical or medical services                        (Northern Ireland) 1996;
           (including dental or nursing
           services); or                                    e) the Family Proceedings Rules
                                                               (Northern Ireland) 1996;
        ii) a claim for damages in respect of
            alleged professional negligence in              f) Parts I, III and IV of the Children
            the conduct of such a claim.                       (Northern Ireland) Order 1995;

      “Family Dispute” means a legal dispute                g) Family Homes and Domestic
      arising out of a family relationship,                    Violence (Northern Ireland)
      including disputes concerning the                        Order 1998;
      welfare of children or which may give
      rise to Family Proceedings.                           h) the inherent jurisdiction of the High
                                                               Court in relation to children and
      “Family Proceedings” means proceedings
      which arise out of family relationships,              i) the Adoption and Children
      including proceedings in which the                       Act 2002
      welfare of children is determined
      (other than judicial review or quasi                  j) the Civil Partnership Act 2004
      criminal proceedings). Family
      Proceedings also include all proceedings
      under any one or more of the following:




                                                                     The Northern Ireland Funding Code 35
Access to Justice | Northern Ireland Legal Services Commission




      “Special Children Order Proceedings”                   “Other Public Law Children Cases” means
      means proceedings under the Children                   public law proceedings concerning the
      (NI) Order 1995 (other than appeal                     welfare of children other than Special
      proceedings) where Legal Representation                Children Order Proceedings or related
      is applied for on behalf of:                           proceedings (see Section 11.8) but including:

          i) a child in respect of whom                          i) Appeals (whether interim or final)
             an application is made for an                          from orders made in Special Children
             order under:                                           Order Proceedings;

             a) Article 50 (a care or                            ii) Other proceedings under Part V or VI
                supervision order);                                  of the 1995 Order;

             b) Article 62 (a child                                 a) Adoption proceedings, including
                assessment order);                                     freeing for adoption;

             c) Article 63 (an emergency                            b) Proceedings under the inherent
                protection order); and                                 jurisdiction of the High Court in
                                                                       relation to children.
             d) Article 64 (extension or
                discharge of an emergency                 2.3    Merits, Costs and Damages
                protection order).                               Prospects of Success means the
                                                                 likelihood of the client obtaining
      ii) any parent of such a child or person                   a successful outcome in the
          with parental responsibility for the                   proceedings, assuming the case were
          child within the meaning of the                        determined at trial or other final
          1995 Order;                                            hearing. Guidance may give examples
                                                                 of what may constitute a successful
      iii) a child who is brought before a                       outcome for different types
           Court under Article 44 (use of                        of proceeding.
           accommodation for restricting
           liberty) who is not, but wishes to be,                Different categories of Prospects of
           legally represented before the Court.                 Success have the following meanings:

                                                                 • “Very Good” means 80% or more;

                                                                 • “Good” means 60%-80%;




36 The Northern Ireland Funding Code
                                        Access to Justice | Northern Ireland Legal Services Commission




• “Moderate” means 50%-60%;                          to 100%) if there is doubt as to whether
                                                     the opponent will be able to pay the
• “Borderline” means that Prospects of               money award.
  Success are not poor, but because
  there are difficult disputes of fact, law   2.4    Other Definitions
  or expert evidence, it is not possible             Note: that terms defined in the Order
  to say that Prospects of Success are               have the same meaning in the Code,
  better than 50%;                                   unless otherwise provided for in
                                                     the Code.
• “Poor” means clearly less than 50%
  so that the claim is likely to fail;               “Asylum and Immigration Tribunal”
                                                     means the tribunal established under
• “Unclear” means that the case                      section 81 of the Nationality, Immigration
  cannot be put into any of the above                and Asylum Act 2002.
  categories because further
  investigation is needed.                           “the Commission” means the Northern
                                                     Ireland Legal Services Commission.
“Likely Costs” means an estimate of the
likely total gross costs to be incurred              “Contract” means a contract with the
on behalf of the client to disposal of               Commission under which legal services
the proceedings. This includes                       are provided which are funded as part of
counsel’s fees, disbursements and                    Civil Legal Services.
any enhancement or uplift on costs.
Where appropriate, costs should                      “Excluded Services” means services
be calculated by reference to standard               which are excluded under Schedule 2 of
or prescribed remuneration rates set by              the Order and are not covered by any
the Lord Chancellor or the Commission.               direction or authorisation under article
Likely Costs and all cost thresholds                 12(A) of the Order.
specified in the Code are exclusive of VAT.
                                                     “Guidance” means guidance published
“Likely Damages” means a realistic                   by the Lord Chancellor or the Commission
estimate of the size of any money                    for the purpose of making decisions
award the client would receive if                    under the Code.
substantially successful at trial or final
hearing, after allowing for any likely               “Hague Convention” means the
reduction through contributory                       convention defined in section 1(1) of the
negligence or otherwise. Likely Damages              Child Abduction and Custody Act 1985.
should be discounted (by anything up




                                                                 The Northern Ireland Funding Code 37
Access to Justice | Northern Ireland Legal Services Commission




      “European Convention” means the                            “prescribed” means either set out
      convention defined in section 12(1) of                     in Regulations or specified by the
      the Child Abduction and Custody Act 1985.                  Commission.

      “Hague Convention Countries” has                           “Proceedings” means legal proceedings
      the same meaning as in the Reciprocal                      before any court, tribunal, arbitrator or
      Enforcement of Maintenance Orders                          panel in Northern Ireland, but mediation
      (Hague Convention Countries) Order 1979.                   and any form of dispute resolution which
                                                                 cannot make a determination which
      “Maintenance Orders (Reciprocal                            is binding on the client do not count
      Enforcement) Act 1972” means the                           as proceedings.
      Act as applied with such exceptions,
      adaptations and modifications as are                       “Public Authority” has the meaning
      specified in the 1979 Order.                               given in section 6 of the Human Rights
                                                                 Act 1998.
      “Multi-Party Action or MPA” means any
      action or actions in which a number of                     “Regulations” means orders or
      clients have causes of action which                        regulations under the Order.
      involve common issues of fact or law
      arising out of the same cause or event.                    “Significant Wider Public Interest”
                                                                 means the potential of the proceedings
      “the 1995 Order” means the Children                        to produce real benefits for individuals
      (Northern Ireland) Order 1995.                             other than the client (other than benefits
                                                                 to the public at large which normally
      “the Order” means the Access to Justice                    flow from proceedings of the type
      (Northern Ireland) Order 2003.                             in question).

      “Overwhelming importance to the                            “Small Claims” in general a small claim
      client” means a case which has                             is one where the value of the claim is not
      exceptional importance to the client,                      more than £2,000.
      beyond the monetary value (if any) of
      the claim, because the case concerns the            Section 3 Case Categories
      life, liberty or physical safety of the client
      or his or her family, or a roof over                3.1    The General Funding Code
      their heads.                                               Applications for funding will be
                                                                 considered under the General Funding




38 The Northern Ireland Funding Code
                                               Access to Justice | Northern Ireland Legal Services Commission




      Code except to the extent that different       3.5    Guidance
      criteria are specified for specific                   Guidance may give examples of
      categories of case or proceeding.                     descriptions of proceedings in
      Definitions and criteria for specific                 particular case categories.
      categories are given in sections 6-13
      of these Criteria.                             3.6    Foreign Orders and Judgments
                                                            Cases within the scope of section 11.12
3.2   Disputed Categories                                   shall be subject only to the criteria in
      Where any issue arises as to which                    that section (whether or not the
      category a case falls into, the                       proceedings in question are Family
      Commission will apply the criteria                    Proceedings).
      which appear to it to be most relevant
      to the substance of the application.           Section 4 Standard Criteria

3.3   Mixed Claims                                   4.1    Scope Of This Section
      Where it appears to the Commission                    The criteria in this section apply to
      that an application for Legal                         all applications under the Code.
      Representation relates to proceedings
      covering more than one category,               4.2    Northern Ireland Law
      the Commission may apply the criteria                 An application will be refused if it
      which appear to it most appropriate                   relates to law other than that of
      to the proceedings as a whole. If                     Northern Ireland, save where this
      proceedings have not been started,                    is permitted by or under Article 9
      the Commission may consider each                      of the Order.
      aspect of the case under the criteria
      relevant to it and may apply appropriate       4.3    Excluded Services
      restrictions on any grant.                            An application for the provision of
                                                            excluded services will be refused unless
3.4   Excluded Proceedings                                  by specific order, direction or
      The Commission will refuse an                         authorisation of the Lord Chancellor.
      application for Legal Representation
      if, in the view of the Commission,             4.4    Directions on Scope
      effective representation cannot be                    Where an application relies upon a
      provided in the proceedings without                   direction or authorisation under Article
      the provision of excluded services.                   12(A) of the Order the application will
                                                            be refused if any conditions specified
                                                            in the direction or authorisation are
                                                            not satisfied.




                                                                        The Northern Ireland Funding Code 39
Access to Justice | Northern Ireland Legal Services Commission




4.5   Identity of Client                                         ii) Regulations or Code Procedures
      An application will be refused unless it is                    authorise services to be provided
      for the benefit of a client who is an                          before completion of the financial
      individual and who satisfies such                              assessment.
      other conditions as are specified in the
      Code Procedures.                                    4.10 Conduct
                                                               An application may be refused if it
4.6   Identity of Supplier                                     appears unreasonable to grant funding
      An application will be refused unless                    in the light of the conduct of the client
      the proposed supplier of services is                     in connection with this or any other
      of a description specified in the                        application or in connection with
      Code Procedures.                                         any proceedings.

4.7   Contract Scope                                      Section 5 The General Funding Code
      Where an application is for services
      which under the Code Procedures                     5.1    Application of General Funding Code
      can be provided under contract, the                        This section applies, in addition to the
      application will be refused unless the                     criteria in section 4, to any application
      supplier has a contract and is permitted                   for funding, save to the extent that
      to provide those services under the                        different criteria are applied for specific
      terms of the contract.                                     categories of case or proceedings in
                                                                 sections 6 to 14.
4.8   Procedures
      An application may be refused or rejected           5.2    Criteria for Legal Help
      if any Code Procedures have not been
      complied with.                                             5.2.1 Sufficient Benefit Test
                                                                       Help may only be provided where
4.9   Financial Eligibility                                            there is sufficient benefit to the
      An application will be refused unless the                        client, having regard to the
      client is assessed as financially eligible                       circumstances of the matter,
      under regulations, except where:                                 including the personal
                                                                       circumstances of the client,
      i) under Regulations services are                                to justify work or further work
         available without reference to means; or                      being carried out.




40 The Northern Ireland Funding Code
                                             Access to Justice | Northern Ireland Legal Services Commission




      5.2.2 Funding as part of Civil                             alternative dispute resolution
            Legal Services                                       which should be tried before
            Help may only be provided if it is                   litigation is pursued.
            reasonable for the matter to be
            funded out of the Civil Legal                 5.3.4 Other Levels of Service
            Services Fund, having regard to                     An application may be refused
            any other potential sources                         if it appears premature or if it
            of funding.                                         appears more appropriate for the
                                                                client to be assisted by some other
5.3   Standard Criteria for                                     level of service under the Code,
      Legal Representation                                      such as Legal Help.

      5.3.1 Scope Of This Section                         5.3.5 The Need for Representation
            The following criteria apply                        An application may be refused if
            to all applications for Legal                       it appears unreasonable to fund
            Representation, in addition to the                  representation, for example in the
            criteria relevant to the specific                   light of the nature or complexity of
            level of service applied for.                       the issues, the existence of other
                                                                proceedings or the interests of
      5.3.2 Alternative Funding                                 other parties in the proceedings
            An application may be refused if                    to which the application relates.
            alternative funding is available to
            the client (through insurance or              5.3.6 Small Claims
            otherwise) or if there are other                    An application will be refused if
            persons or bodies, including those                  the case is a small claims matter.
            who might benefit from the
            proceedings, who can reasonably        5.4    Emergency Representation
            be expected to bring or fund the
            case. For the purpose of this                 5.4.1 Urgency
            criterion only, alternative funding                 Legal Representation may only be
            does not include funding by means                   granted as a matter of urgency
            of a conditional fee agreement.                     where it appears in the interests
                                                                of justice to do so.
      5.3.3 Alternatives to Litigation
            An application may be refused                 5.4.2 Limited Information
            if there are complaint systems,                     Where only limited information
            ombudsman schemes or forms of                       is available to determine whether




                                                                      The Northern Ireland Funding Code 41
Access to Justice | Northern Ireland Legal Services Commission




             the criteria for Legal                       5.6    Criteria for Full Representation
             Representation are satisfied,
             emergency representation may                        5.6.1 Prospects of Success
             be granted only if it appears likely                      Full Representation will be refused if:
             on the information available that
             those criteria would be satisfied.                        i) Prospects of success are unclear;

5.5   Criteria for Investigative Help                                  ii) Prospects of success are
                                                                           borderline and the case does
      5.5.1 The Need for Investigation                                     not appear to have a significant
            Investigative Help may only                                    wider public interest or to be of
            be granted where the prospects                                 overwhelming importance to the
            of success of the claim are                                    client; or
            uncertain and substantial
            investigative work is required                             iii) Prospects of success are poor.
            before those prospects can be
            determined. Guidance may indicate                    5.6.2 Cost Benefit - Quantifiable Claims
            what constitutes substantial                               If the claim is primarily a claim
            investigative work for this purpose.                       for damages by the client and
                                                                       does not have a significant wider
      5.5.2 Damages                                                    public interest, Full Representation
            If the client’s claim is primarily                         will be refused unless the following
            a claim for damages and has no                             cost benefit criteria are satisfied:
            significant wider public interest,
            Investigative Help will be refused                         i) If prospects of success are very
            unless the damages are likely to                              good (80% or more), likely
            exceed £5,000.                                                damages must exceed likely
                                                                          costs;
      5.5.3 Prospects after Investigation
            Investigative Help may only be                             ii) If prospects of success are good
            granted if there are reasonable                                (60%-80%), likely damages must
            grounds for believing that when                                exceed likely costs by a ratio
            the investigative work has been                                of 2:1;
            carried out the claim will be strong
            enough, in terms of prospects of                           iii) If prospects of success are
            success and cost benefit, to satisfy                            moderate (50%-60%), likely
            the relevant criteria for Full                                  damages must exceed likely
            Representation.                                                 costs by a ratio of 4:1.




42 The Northern Ireland Funding Code
                                              Access to Justice | Northern Ireland Legal Services Commission




      5.6.3 Cost Benefit -                                        order, direction or authorisation
            Unquantifiable Claims                                 from the Lord Chancellor so
            If the claim is not primarily a claim                 provides, and then only in
            for damages (including any                            accordance with the terms of the
            application by a defendant or a                       order, direction or authorisation.
            case which has overwhelming
            importance to the client), but does            5.7.2 Reasonableness
            not have a significant wider                         An application for such services may
            public interest, Full Representation                 be refused if it appears unreasonable
            will be refused unless the likely                    in all the circumstances to grant it.
            benefits to be gained from the
            proceedings justify the likely          Section 6 Very Expensive Cases
            costs, such that a reasonable
            private paying client would             6.1    Scope
            be prepared to litigate, having                This section applies to applications or
            regard to the prospects of success             certificates for Legal Representation
            and all other circumstances.                   which meet the thresholds specified in
                                                           the Code Procedures.
      5.6.4 Cost Benefit -
            Public Interest Cases                   6.2    Relevant Criteria
            If the claim has a significant                 All Criteria relevant to the level of service
            wider public interest, Full                    and category of case in question shall
            Representation may be refused                  apply, as modified in this section, in
            unless the likely benefits of the              addition to the Criteria set out in
            proceedings to the applicant and               this section.
            others justify the likely costs,
            having regard to the prospects of       6.3    The Costed Case Plan
            success and all other circumstances.           Funding may be refused if the proposals
                                                           put forward for progressing the litigation
5.7   Criteria for Other Services                          including proposals as to cost do not
                                                           appear to the Commission to
      5.7.1 Orders, Directions                             be satisfactory.
            and Authorisations
            Levels of service other than those      6.4    Affordability
            provided for in the General Funding            Subject to 6.5 below, funding will be
            Code or elsewhere in these criteria            refused or deferred unless it appears
            may be funded only if a specific               reasonable for funding to be granted




                                                                       The Northern Ireland Funding Code 43
Access to Justice | Northern Ireland Legal Services Commission




      in the light of the resources available in                 7.2.2 Is Judicial Review Available?
      the Budget and likely future demands on                          An application may be refused
      those resources.                                                 if the act or decision complained of
                                                                       in the proposed proceedings does
6.5   Top Priority Cases                                               not appear to be susceptible
      The affordability criterion in 6.4 shall not                     to challenge.
      apply to:
                                                                 7.2.3 Administrative Procedures
      i) Special Children Order Proceedings;                           Investigative Help may be refused
                                                                       if there are administrative appeals
      ii) Judicial review proceedings under                            or other procedures which should
          section 7 of the Criteria in which                           be pursued before proceedings are
          funding is to continue by virtue of                          considered.
          criterion 7.5.2;
                                                          7.3    Criteria for Full Representation
      iii) Other proceedings in which the life                   If, at the time the application for funding
           or liberty of the client is at risk.                  is made, the court has not granted leave
                                                                 to bring the proceedings or if according
Section 7 Judicial Review                                        to rules of court such leave is not
                                                                 required, the criteria in section 7.4 apply.
7.1   Scope                                                      If at the time the application is made the
      This section applies to applications                       court has granted leave, the criteria in
      for Legal Representation in relation                       7.5 apply.
      to court proceedings concerning
      public law challenges to the acts,                  7.4    Pre-Leave Criteria
      omissions or decisions of public bodies,
      including in particular challenges by way                  7.4.1 General Funding Code
      of judicial review or habeas corpus.                             The following criteria replace those
                                                                       in section 5.6 of the General
7.2   Criteria for Investigative Help                                  Funding Code.

      7.2.1 General Funding Code Criteria                        7.4.2 Is Judicial Review available?
            Criterion 5.5.2 (minimum damages                           An application may be refused
            level) does not apply to                                   if the act or decision complained of
            applications for Investigative                             in the proposed proceedings does
            Help under this section.                                   not appear to be susceptible
                                                                       to challenge.




44 The Northern Ireland Funding Code
                                          Access to Justice | Northern Ireland Legal Services Commission




7.4.3 Administrative Procedures                               benefits of the proceedings, having
      Full Representation may be refused                      regard to the prospects of success
      if there are administrative appeals                     and all other circumstances.
      or other procedures which should
      be pursued before proceedings             7.5    Post-Leave Criteria
      are considered.
                                                       7.5.1 General Funding Code
7.4.4 Notification to Respondent                             The following criteria replace those
      Full Representation will be refused                    in section 5.6 of the General
      unless the proposed respondent has                     Funding Code.
      been given a reasonable opportunity
      to respond to the challenge or deal              7.5.2 The Presumption of Funding
      with the applicant’s complaint,                        If the case has a significant
      save where this is impracticable                       wider public interest, or is of
      in the circumstances.                                  overwhelming importance to the
                                                             client or raises significant human
7.4.5 Prospects of Success                                   rights issues, then, provided the
      Full Representation will be refused                    standard criteria in Section 4 and
      if the prospects of successfully                       Section 5.3 are satisfied, funding
      obtaining the substantive order                        shall be granted save where, in
      sought in the proceedings are:                         light of information which was
                                                             not before the court at the leave
      i) unclear;                                            stage or has subsequently come
                                                             to light, it appears unreasonable for
      ii) borderline and the case does                       Legal Representation to be granted.
          not appear to have significant
          wider public interest, to be of              7.5.3 Refusal on the Merits
          overwhelming importance to                         Where the case does not appear
          the client or to raise significant                 to have a significant wider public
          human rights issues; or                            interest, to be of overwhelming
                                                             importance to the client or to
      iii) poor.                                             raise significant human rights
                                                             issues, Legal Representation will
7.4.6 Cost Benefit                                           be refused if:
      Full Representation may be
      refused unless the likely costs                         i) prospects of success are
      areproportionate to the likely                             borderline or poor; or




                                                                   The Northern Ireland Funding Code 45
Access to Justice | Northern Ireland Legal Services Commission




             ii) the likely costs do not appear to        8.3    Criteria for Full Representation
                 be proportionate to the likely
                 benefits of the proceedings                     8.3.1 General Funding Code
                 having regard to the prospects                        The following criteria replace the
                 of success and all the                                criteria in section 5.6 of the
                 circumstances.                                        General Funding Code in
                                                                       applications to which this
Section 8 Claims against Public Authorities                            section applies.

8.1   Scope                                                      8.3.2 Prospects of Success
      This section applies to applications for                         Full Representation will be refused if:
      Legal Representation in relation to
      proceedings or proposed proceedings                           i) Prospects of success are unclear;
      against public authorities concerning
      serious wrong-doing, abuse of position                        ii) Prospects of success are border-
      or power or significant breach of human                           line and the case does not appear
      rights, other than cases falling within the                       to have a significant wider public
      scope of section 6 (Judicial Review) or                           interest, to be of overwhelming
      section 9 (Housing).                                              importance to the client or to raise
                                                                        significant human rights issues;
8.2   Criteria for Investigative Help
                                                                    iii) Prospects of success are poor.
      8.2.1 Public Authority Complaints
            Investigative Help may be refused                    8.3.3 Cost Benefit
            if it is more appropriate for                              Legal Representation may
            the client to pursue the public                            be refused unless the likely costs
            authority’s complaints procedure                           are proportionate to the likely
            than litigation.                                           benefits of the proceedings, having
                                                                       regard to the prospects of success
      8.2.2 Damages                                                    and all other circumstances.
            Criterion 5.5.2 (minimum damages
            level) does not apply to                             8.3.4 Public Authority Complaints
            applications for Investigative Help                        Full Representation may be refused
            under this section.                                        if it is more appropriate for
                                                                       the client to pursue the public
                                                                       authority’s complaints procedure
                                                                       than litigation.




46 The Northern Ireland Funding Code
                                                 Access to Justice | Northern Ireland Legal Services Commission




Section 9 Clinical Negligence                          10.3 Criteria for Full Representation -
                                                            Possession Cases
9.1   Scope
      This section applies to applications for         10.3.1 General Funding Code
      Legal Representation in Clinical                        The following criteria replace those
      Negligence Proceedings.                                 in section 5.6 of the General Funding
                                                              Code for proceedings which concern
9.2   The Complaints Scheme                                   possession of the client’s home.
      Legal Representation may be refused if it
      is more appropriate for the client to            10.3.2 Prospects of Success
      pursue the NHS complaints procedure                     Full Representation will be refused
      than litigation.                                        if the client has no substantive legal
                                                              defence to the proceedings or the
Section 10 Housing                                            prospects of successfully avoiding an
                                                              order for possession (or, if the client
10.1 Scope                                                    is bringing proceedings, the prospects
     This section applies to applications                     of obtaining such an order) are poor.
     for legal representation for a client in
     proceedings which concern possession              10.3.3 Cost Benefit
     of the client’s home, the client’s legal                 Full representation may be refused
     status in the home or the obligations                    unless the likely costs are
     of a landlord or other person to keep                    proportionate to the likely benefits of
     the client’s home in good repair and                     the proceedings, having regard
     allow quiet enjoyment of the property.                   to the prospects of success and all
     However, this section does not apply to                  other circumstances.
     cases within the scope of section 7
     (Judicial Review).                                10.4 Criteria for Full Representation -
                                                            Other Housing Cases
10.2 Criteria for Investigative Help
     In applications for Investigative Help                   10.4.1 General Funding Code
     under this section the figure for minimum                       The following criteria replace
     damages in criterion 5.5.2 shall be £1,000.                     the criteria in section 5.6 of
                                                                     the General Funding Code in
                                                                     applications within the scope
                                                                     of this section other than
                                                                     possession cases.




                                                                          The Northern Ireland Funding Code 47
Access to Justice | Northern Ireland Legal Services Commission




      10.4.2 Notification to Landlord                                    benefits of the proceedings,
             Where the client is applying                                having regard to the prospects
             for Full Representation to bring                            of success and all other
             proceedings the application                                 circumstances.
             may be refused unless the
             landlord or other person                     Section 11 Family
             responsible for dealing with
             the matters complained of has                11.1 Scope
             been notified of the client’s                     This section applies to applications for
             complain and given a reasonable                   Family Help, or Legal Representation in
             opportunity to respond and                        Family Proceedings.
             put matters right, save where
             this is impracticable in the                 11.2 Criteria for Family Help
             circumstances.
                                                                 11.2.1 Significant Family Dispute
      10.4.3 Prospects of Success                                       Family Help may only be
             Full Representation will be                                provided where the client
             refused if:                                                requires ongoing help
                                                                        in relation to a significant
                 i) Prospects of success are                            Family Dispute. Guidance
                    unclear;                                            may specify what constitutes
                                                                        a significant Family Dispute for
                 ii) Prospects of success are                           this purpose.
                     border-line and the case
                     does not appear to have                     11.2.2 Cost Benefit
                     a significant wider public                         Family Help will be refused
                     interest or to be of                               unless the benefits to be
                     overwhelming importance                            gained from help provided
                     to the client;                                     justify the likely costs,
                                                                        such that a reasonable
                 iii) Prospects of success are poor.                    private paying client
                                                                        would be prepared to proceed
      10.4.4 Cost Benefit                                               in all the circumstances.
             Full representation may be
             refused unless the likely costs
             are proportionate to the likely




48 The Northern Ireland Funding Code
                                            Access to Justice | Northern Ireland Legal Services Commission




11.2.3 Other Levels of Service                                     Proceedings shall take the
            Family Help will be refused if it                      form of Family help or Legal
            is more appropriate for the client                     Representation.
            to be assisted by way of Legal
            Help or Legal Representation.                11.4.2 Standard Criteria
                                                                The criteria at Section 5.6 of the
11.3 Criteria for Family Help (Higher)                          General Funding Code (criteria
                                                                for Full Representation) and
     11.3.1 Family Help Criteria                                criterion 5.3.6 (small claims) do
            An application for Family Help                      not apply to applications for
            (Higher) must satisfy the                           Legal Representation in
            following criteria, in addition to                  Family Proceedings.
            the criteria for Family Help at
            11.2 above.                                  11.4.3 Legal Representation Criteria
                                                                The criteria at 11.5 to 11.12
     11.3.2 Attempts at Settlement                              below apply only to applications
            Family Help (Higher) may be                         for Legal Representation.
            refused unless reasonable
            attempts have been made               11.5 Criteria for Special Children
            to resolve the dispute without             Order Proceedings
            recourse to contested                      Legal Representation shall be granted in
            proceedings, through                       Special Children Order Proceedings (as
            negotiation or otherwise.                  defined in Section 2) provided the
                                                       relevant criteria, other than those relating
     11.3.3 Public Law Cases                           to financial eligibility, in Section 4.9 are
            Family Help (Higher) is                    satisfied. The standard criteria in Section
            not available for Public                   5.3 of the General Funding Code shall
            Law Proceedings                            not apply.

11.4 Legal Representation in                      11.6 Related Proceedings
     Family Proceedings                                Where Legal Representation has been
                                                       granted to a person in Special Children
     11.4.1 Investigative Help                         Order Proceedings, Legal Representation
            Investigative Help is not                  may also be granted for that person in
            available in Family Proceedings.           related proceedings which are being
            Legal Representation in Family             heard together with the Special Children




                                                                     The Northern Ireland Funding Code 49
Access to Justice | Northern Ireland Legal Services Commission




      Order Proceedings or in which an order                             if it appears unreasonable for
      is being sought as an alternative                                  funding to be granted, having
      to an order in the Special Children                                regard to the importance of the
      Order Proceedings.                                                 case to the client and all other
                                                                         circumstances.
11.7 Criteria for other Public Law
     Children Cases                                       11.8 Domestic Violence Cases

      11.7.1 Standard Criteria                                   11.8.1 Scope
             The standard criteria for Legal                            These criteria apply to
             Representation in Section 5.3 of                           proceedings seeking an
             the General Funding Code do                                injunction, committal order
             not apply in other public law                              or other orders for the protection
             children cases, save for the                               of a person from harm (other
             following criteria:                                        than public law children
                                                                        proceedings).
                 i) 5.3.2 (refusal on the ground
                    of the availability of                       11.8.2 Prospects of Success
                    alternative sources of                              Legal Representation will be
                    funding);                                           refused if the prospects of
                                                                        obtaining the order sought in
                 ii) 5.3.5 (refusal on the ground                       the proceedings are poor.
                     that representation is not
                     necessary).                                 11.8.3 Cost Benefit
                                                                        Legal Representation will
      11.7.2 Prospects of Success                                       be refused unless the likely
             Where Legal Representation                                 costs are proportionate to the
             is sought on behalf of a client                            likely benefits of the
             who is making or supporting an                             proceedings, having regard to
             application or appeal, Legal                               the prospects of obtaining the
             Representation will be refused if                          order sought and all other
             the prospects of the application                           circumstances.
             or appeal being successful
             are poor.                                    11.9 Private Law Children Cases

      11.7.3 Reasonableness                                      11.9.1 Scope
             An application for Legal                                   These criteria apply to
             Representation may be refused                              proceedings concerning




50 The Northern Ireland Funding Code
                                               Access to Justice | Northern Ireland Legal Services Commission




              residence, contact and other                                provision, and to all other
              private law issues concerning                               family proceedings which
              children (other than issues of                              are not covered by criteria
              financial provision).                                       elsewhere in this section.

    11.9.2 Attempts at Settlement                              11.10.2 Attempts at Settlement
           Legal Representation may be                                 Legal Representation may be
           refused unless reasonable                                   refused unless reasonable
           attempts have been made                                     attempts have been made
           to resolve the dispute without                              to resolve the dispute without
           recourse to contested                                       recourse to contested
           proceedings, through                                        proceedings, through
           negotiation or otherwise.                                   negotiation or otherwise.

    11.9.3 Prospects of Success                                11.10.3 Prospects of Success
           Legal Representation will be                                Legal Representation will
           refused if prospects of success                             be refused if prospects of
           are poor.                                                   success are:

    11.9.4 Cost Benefit                                                   i) borderline or unclear,
           Legal Representation will                                         save where the case has
           be refused unless the likely                                      overwhelming importance
           benefits to be gained from the                                    to the client or a significant
           proceedings for the client                                        wider public interest; or
           justify the likely costs, such that
           a reasonable private paying                                    ii) poor
           client would be prepared to
           take or defend the proceedings                      11.10.4 Cost Benefit
           in all the circumstances.                                   Legal representation will
                                                                       be refused unless the likely
11.10   Financial Provision and                                        benefits to be gained from
        Other Proceedings                                              the proceedings for the client
                                                                       justify the likely costs, such
        11.10.1 Scope                                                  that a reasonable private
                These criteria apply to                                paying client would be
                ancillary relief and other                             prepared to take or defend
                family proceedings                                     the proceedings in all the
                concerning financial                                   circumstances.




                                                                        The Northern Ireland Funding Code 51
Access to Justice | Northern Ireland Legal Services Commission




          11.10.5 Private Funding                                             a maintenance order made
                  Legal Representation may                                    in a Hague Convention
                  be refused if it appears                                    country pursuant to the
                  unreasonable in all the                                     Maintenance Orders
                  circumstances for the                                       (Reciprocal Enforcement)
                  proceedings to be funded                                    Act 1972; or
                  privately, having regard to the
                  financial circumstances of                               ii) applies for the
                  the client and the value of                                  registration of a judgment
                  the assets in dispute.                                       under Section 4 of the
                                                                               Civil Jurisdiction and
11.11     Child Abduction Cases                                                Judgments Act 1982.
          Subject only to Section 4, Legal                                     and who satisfies the
          Representation shall be granted to                                   criterion set out below.
          a person whose application under the
          Hague Convention or the European                        11.12.2 Legal Aid Abroad
          Convention has been submitted to the                            Legal representation under
          central authority in Northern Ireland                           this provision shall be
          pursuant to Section 3(2) or Section                             granted if the standard
          14(2) of the Child Abduction and                                criteria in Section 4 are
          Custody Act 1985 and on whose                                   satisfied and if the client
          behalf a legal representative has been                          benefited from complete
          instructed in Northern Ireland in                               or partial legal aid, other
          connection with the application.                                public funding or exemption
                                                                          from costs or expenses in the
11.12     Registration of Foreign Orders                                  country in which the
          and Judgments                                                   maintenance order was made
                                                                          or the judgment was given.
          11.12.1 Scope
                  This section applies to a               Section 12 Mental Health
                  person who;
                                                          12.1 Scope
                    i) appeals to a Magistrates’               This section applies to applications for
                       Court against the                       Legal Representation in proceedings
                       registration of or the                  before a Mental Health Review Tribunal
                       refusal to register                     under the Mental Health (Northern




52 The Northern Ireland Funding Code
                                               Access to Justice | Northern Ireland Legal Services Commission




      Ireland) Order 1986 on behalf of a                       ii) the High Court, in relation to
      person whose case or whose application                   applications under section 103A of
      to the Tribunal is or is to be the subject of            the Nationality, Immigration and
      the proceedings.                                         Asylum Act 2002.

12.2 Investigative Help                               13.2 Investigative Help
     Investigative Help is not available in                Investigative Help is not available
     applications under this section.                      in applications under this section.
     Applications for Legal Representation                 Applications for Legal Representation
     under this section shall take the form of             under this section shall take the form
     Full Representation.                                  of Full Representation.

12.3 General Funding Code                             13.3 General Funding Code
     The criteria in Sections 5.3 and 5.6 of               The standard criteria for Legal
     the General Funding Code shall not apply              Representation in Section 5.3 of the
     to applications under this section (but               General Funding Code apply to
     this should not be taken as restricting the           applications under this section, save
     scope of the reasonableness criterion                 for criterion 5.3.6 (small claims). The
     below).                                               criteria for Full Representation under
                                                           Section 5.6 of the General Funding Code
12.4 Reasonableness                                        do not apply to applications under
     An application may be refused if it is                this section.
     unreasonable in the particular
     circumstances of the case for Legal              13.4 Prospects of Success
     Representation to be granted.                         Legal Representation will be refused
                                                           if the prospects of achieving a successful
Section 13 Immigration                                     outcome for the client are:

13.1 Scope                                                  i) unclear or borderline, save where the
     This section applies to applications for                  case has a significant wider public
     Legal Representation for a client whose                   interest, is of overwhelming
     case is before                                            importance to the client or raises
                                                               significant human rights issues; or
      i) the Asylum and Immigration
         Tribunal; or                                       ii) poor.




                                                                        The Northern Ireland Funding Code 53
Access to Justice | Northern Ireland Legal Services Commission




13.5 Cost Benefit                                                should not be taken as restricting the
     Save where the case has a significant                       scope of the interests of justice criterion
     wider public interest, Legal                                below).
     Representation will be refused unless
     the likely benefits to be gained from                14.4 Interests of Justice
     the proceedings justify the likely costs,                 An application may be refused unless
     such that a reasonable private paying                     it is in the interests of justice for Legal
     client would be prepared to take the                      Representation to be granted.
     proceedings, having regard to
     the prospects of success and all                     Section 15 Withdrawal of Funding
     other circumstances.
                                                          15.1 Scope
Section 14 Quasi-Criminal Proceedings                          This section applies where funding has
                                                               already been granted under the Code
14.1 Scope                                                     Criteria. Funding may be withdrawn in
     This section applies to applications                      accordance with the following criteria
     for Legal Representation in proceedings                   and the Code Procedures. Code
     in which the client may be subject to                     Procedures may in particular specify
     orders or penalties which are (or which                   the grounds for withdrawal of emergency
     the client is reasonably contending                       representation.
     are) criminal penalties within the
     meaning of article 6 of the European                 15.2 Criteria No Longer Satisfied
     Convention on Human Rights.                               Funding may be withdrawn where the
                                                               criteria under which funding was
14.2 Investigative Help                                        originally granted are no longer satisfied.
     Investigative Help is not available in
     applications under this section.                     15.3 Reasonableness
     Applications for Legal Representation                     Funding may be withdrawn where it is
     under this section shall take the form of                 unreasonable for funding to continue in
     Full Representation.                                      all the circumstances of the case, taking
                                                               into account the interests of the client,
14.3 General Funding Code                                      any wider public interest and the interest
     The criteria in Section 5.6 of the                        of the Civil Legal Services Fund.
     General Funding Code shall not apply
     to applications under this section (but




54 The Northern Ireland Funding Code
                                               Access to Justice | Northern Ireland Legal Services Commission




15.4 Investigations
     Investigative Help will cease where it
     appears that sufficient work has been
     carried out to enable prospects of success
     to be determined.

15.5 Other grounds
     Without prejudice to any of the above
     criteria, funding may be withdrawn:

     i)   where the client has died;

     ii) where the client has had a
         bankruptcy order made against him
         or her;

     iii) on financial grounds, in accordance
          with Code Procedures and
          Regulations;

     iv) with the consent of the client;

     v) where the case has been disposed
        of or all work authorised by the
        Commission has been completed;

     vi) where, in accordance with the Code
         Procedures, it is unreasonable for
         funding to continue in the light of
         the conduct of the client;

     vii) where in any other circumstances
          it would be reasonable for funding
          to be withdrawn.




                                                                        The Northern Ireland Funding Code 55
Access to Justice | Northern Ireland Legal Services Commission




Annex 4

Consultation Criteria

When to consult                                              The burden of consultation
Formal consultation should take place at a                   Keeping the burden of consultation to a
stage when there is scope to influence the                   minimum is essential if consultations are to
policy outcome.                                              be effective and if consultees’ buy-in to the
                                                             process is to be obtained.
Duration of consultation exercises
Consultations should normally last for at least              Responsiveness of consultation exercises
12 weeks with consideration given to longer                  Consultation responses should be analysed
timescales where feasible and sensible.                      carefully and clear feedback should be provided
                                                             to participants following the consultation.
Clarity of scope and impact
Consultation document should be clear                        Capacity to consult
about the consultation process, what is being                Officials running consultations should
proposed, the scope of influence and the                     seek guidance in how to run an effective
expected costs and benefits of the proposals.                consultation exercise and share what they
                                                             have learned from the experience.
Accessibility of consultation exercises
Consultation exercises should be designed to
be accessible to, and clearly targeted at, those
people the exercise is intended to reach.




HM Government, Code of Practice on Consultation, July 2008

56 The Northern Ireland Funding Code
Access to Justice | Northern Ireland Legal Services Commission
For further information on the work of the
Northern Ireland Legal Services Commission
please contact

Northern Ireland Legal Services Commission
2nd Floor, Waterfront Plaza
Laganbank Road, Mays Meadow
Belfast BT1 3BN

Telephone: 028 9040 8888
Facsimile: 028 9040 8995
www.nilsc.org.uk

				
DOCUMENT INFO