Courts and Legal Services Act 1990
1990 c. 41
An Act to make provision with respect to the procedure in, and allocation of business between, the High Court and other courts; to make provision with respect to legal services; to establish a body to be known as the Lord Chancellor’s Advisory Committee on Legal Education and Conduct and a body to be known as the Authorised Conveyancing Practitioners Board; to provide for the appointment of a Legal Services Ombudsman; to make provision for the establishment of a Conveyancing Ombudsman Scheme; to provide for the establishment of Conveyancing Appeal Tribunals; to amend the law relating to judicial and related pensions and judicial and other appointments; to make provision with respect to certain officers of the Supreme Court; to amend the Solicitors Act 1974; to amend the Arbitration Act 1950; to make provision with respect to certain loans in respect of residential property; to make provision with respect to the jurisdiction of the Parliamentary Commissioner for Administration in connection with the functions of court staff; to amend the Children Act 1989 and make further provision in connection with that Act; and for connected purposes.
[1st November 1990]
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
1 Allocation of business between High Court, family court and county court.
(1) The Lord Chancellor may by order make provision—
(a) conferring jurisdiction on the High Court in relation to proceedings in which the family court or the county court has jurisdiction;
(b) conferring jurisdiction on the family court or the county court in relation to proceedings in which the High Court has jurisdiction;
(c) allocating proceedings to the High Court or to the family court or to the county court ;
(d) specifying proceedings which may be commenced only in the High Court;
(da) specifying proceedings which may be commenced only in the family court,
(e) specifying proceedings which may be commenced only in the county court;
(f) specifying proceedings which may be taken only in the High Court;
(fa) specifying proceedings which may be taken only in the family court;
(g) specifying proceedings which may be taken only in the county court.
(1A) An order under subsection (1)(a) or (b) may be made only with the concurrence of the Lord Chief Justice.
(2) Without prejudice to the generality of section 120(2), any such order may differentiate between categories of proceedings by reference to such criteria as the Lord Chancellor sees fit to specify in the order.
(3) The criteria so specified may, in particular, relate to—
(a) the value of an action (as defined by the order);
(b) the nature of the proceedings;
(c) the parties to the proceedings;
(ca) any relationship between the proceedings and any other proceedings;
(d) the degree of complexity likely to be involved in any aspect of the proceedings; and
(e) the importance of any question likely to be raised by, or in the course of, the proceedings.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) Any such order may—
(a) amend or repeal any provision falling within subsection (8) and relating to—
(i) the jurisdiction, practice or procedure of the Senior Courts ; or
(ii) the jurisdiction, practice or procedure of the county court, or
(iii) the jurisdiction, practice or procedure of the family court,
so far as the Lord Chancellor considers it to be necessary, or expedient, in consequence of any provision made by the order; or
(b) make such incidental or transitional provision as the Lord Chancellor considers necessary, or expedient, in consequence of any provision made by the order.
(8) A provision falls within this subsection if it is made by any enactment other than this Act or made under any enactment.
(9) Before making any such order the Lord Chancellor shall consult the Lord Chief Justice, the Master of the Rolls, the President of the Queen's Bench Division, the President of the Family Division, the President of the Business and Property Division and the Senior Presiding Judge (appointed under section 72).
(10) No such order shall be made so as to confer jurisdiction on the family court or the county court to hear any application for judicial review.
(11) For the purposes of this section the commencement of proceedings may include the making of any application in anticipation of any proceedings or in the course of any proceedings.
(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(13) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
(1) The following section shall be substituted for section 40 of the County Courts Act 1984 (transfer of proceedings to county court)—
Transfer of proceedings to county court.
40 (1) Where the High Court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subsection (8) to be in a county court it shall—
(a) order the transfer of the proceedings to a county court; or
(b) if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement, order that they be struck out.
(2) Subject to any such provision, the High Court may order the transfer of any proceedings before it to a county court.
(3) An order under this section may be made either on the motion of the High Court itself or on the application of any party to the proceedings.
(4) Proceedings transferred under this section shall be transferred to such county court as the High Court considers appropriate, having taken into account the convenience of the parties and that of any other persons likely to be affected and the state of business in the courts concerned.
(5) The transfer of any proceedings under this section shall not affect any right of appeal from the order directing the transfer.
(6) Where proceedings for the enforcement of any judgment or order of the High Court are transferred under this section—
(a) the judgment or order may be enforced as if it were a judgment or order of a county court; and
(b) subject to subsection (7), it shall be treated as a judgment or order of that court for all purposes.
(7) Where proceedings for the enforcement of any judgment or order of the High Court are transferred under this section—
(a) the powers of any court to set aside, correct, vary or quash a judgment or order of the High Court, and the enactments relating to appeals from such a judgment or order, shall continue to apply; and
(b) the powers of any court to set aside, correct, vary or quash a judgment or order of a county court, and the enactments relating to appeals from such a judgment or order, shall not apply.
(8) The provisions referred to in subsection (1) are any made—
(a) under section 1 of the Courts and Legal Services Act 1990; or
(b) by or under any other enactment.
(9) This section does not apply to family proceedings within the meaning of Part V of the Matrimonial and Family Proceedings Act 1984.
(2) In section 41 of the County Courts Act 1984 (transfer to High Court by order of the High Court), the following subsection shall be added at the end—
(3) The power conferred by subsection (1) shall be exercised subject to any provision made—
(a) under section 1 of the Courts and Legal Services Act 1990; or
(b) by or under any other enactment.
(3) The following section shall be substituted for section 42 of the County Courts Act 1984 (transfer to High Court by order of a county court)—
Transfer to High Court by order of a county court.
42 (1) Where a county court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subsection (7) to be in the High Court, it shall—
(a) order the transfer of the proceedings to the High Court; or
(b) if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement, order that they be struck out.
(2) Subject to any such provision, a county court may order the transfer of any proceedings before it to the High Court.
(3) An order under this section may be made either on the motion of the court itself or on the application of any party to the proceedings.
(4) The transfer of any proceedings under this section shall not affect any right of appeal from the order directing the transfer.
(5) Where proceedings for the enforcement of any judgment or order of a county court are transferred under this section—
(a) the judgment or order may be enforced as if it were a judgment or order of the High Court; and
(b) subject to subsection (6), it shall be treated as a judgment or order of that court for all purposes.
(6) Where proceedings for the enforcement of any judgment or order of a county court are transferred under this section—
(a) the powers of any court to set aside, correct, vary or quash a judgment or order of a county court, and the enactments relating to appeals from such a judgment or order, shall continue to apply; and
(b) the powers of any court to set aside, correct, vary or quash a judgment or order of the High Court, and the enactments relating to appeals from such a judgment or order, shall not apply.
(7) The provisions referred to in subsection (1) are any made—
(a) under section 1 of the Courts and Legal Services Act 1990; or
(b) by or under any other enactment.
(8) This section does not apply to family proceedings within the meaning of Part V of the Matrimonial and Family Proceedings Act 1984.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The following section shall be substituted for sections 38 and 39 of the County Courts Act 1984 (general ancillary jurisdiction and ancillary powers of judge)—
Remedies available in county courts.
38 (1) Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court.
(2) Any order made by a county court may be—
(a) absolute or conditional;
(b) final or interlocutory.
(3) A county court shall not have power—
(a) to order mandamus, certiorari or prohibition; or
(b) to make any order of a prescribed kind.
(4) Regulations under subsection (3)—
(a) may provide for any of their provisions not to apply in such circumstances or descriptions of case as may be specified in the regulations;
(b) may provide for the transfer of the proceedings to the High Court for the purpose of enabling an order of a kind prescribed under subsection (3) to be made;
(c) may make such provision with respect to matters of procedure as the Lord Chancellor considers expedient; and
(d) may make provision amending or repealing any provision made by or under any enactment, so far as may be necessary or expedient in consequence of the regulations.
(5) In this section “prescribed” means prescribed by regulations made by the Lord Chancellor under this section.
(6) The power to make regulations under this section shall be exercised by statutory instrument.
(7) No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament.
(1) The following section shall be substituted for section 51 of the Senior Courts Act 1981 (costs in civil division of Court of Appeal and High Court)—
Costs in civil division of Court of Appeal, High Court and county courts.
51 (1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in—
(a) the civil division of the Court of Appeal;
(b) the High Court; and
(c) any county court,
shall be in the discretion of the court.
(2) Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives.
(3) The court shall have full power to determine by whom and to what extent the costs are to be paid.
(4) In subsections (1) and (2) “proceedings” includes the administration of estates and trusts.
(5) Nothing in subsection (1) shall alter the practice in any criminal cause, or in bankruptcy.
(6) In any proceedings mentioned in subsection (1), the court may disallow, or (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined in accordance with rules of court.
(7) In subsection (6), “wasted costs” means any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative; or
(b) which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.
(8) Where—
(a) a person has commenced proceedings in the High Court; but
(b) those proceedings should, in the opinion of the court, have been commenced in a county court in accordance with any provision made under section 1 of the Courts and Legal Services Act 1990 or by or under any other enactment,
the person responsible for determining the amount which is to be awarded to that person by way of costs shall have regard to those circumstances.
(9) Where, in complying with subsection (8), the responsible person reduces the amount which would otherwise be awarded to the person in question—
(a) the amount of that reduction shall not exceed 25 per cent; and
(b) on any taxation of the costs payable by that person to his legal representative, regard shall be had to the amount of the reduction.
(10) The Lord Chancellor may by order amend subsection (9)(a) by substituting, for the percentage for the time being mentioned there, a different percentage.
(11) Any such order shall be made by statutory instrument and may make such transitional or incidental provision as the Lord Chancellor considers expedient.
(12) No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament.
(13) In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.
(2) In section 52 of that Act (costs in Crown Court) the following subsection shall be inserted after subsection (2)—
(2A) Subsection (6) of section 51 applies in relation to any civil proceedings in the Crown Court as it applies in relation to any proceedings mentioned in subsection (1) of that section
.
(1) Rules of court may make provision—
(a) requiring, in specified circumstances, any party to civil proceedings to serve on the other parties a written statement of the oral evidence which he intends to adduce on any issue of fact to be decided at the trial;
(b) enabling the court to direct any party to civil proceedings to serve such a statement on the other party; and
(c) prohibiting a party who fails to comply with such a requirement or direction from adducing oral evidence on the issue of fact to which it relates.
(2) Where a party to proceedings has refused to comply with such a requirement or direction, the fact that his refusal was on the ground that the required statement would have been a document which was privileged from disclosure shall not affect any prohibition imposed by virtue of subsection (1)(c).
(3) This section is not to be read as prejudicing in any way any other power to make rules of court.
In section 64 of the County Courts Act 1984 (references to arbitration) the following subsections shall be inserted after subsection (2)—
(2A) County court rules may prescribe the procedures and rules of evidence to be followed on any reference under subsection (1) or (2).
(2B) Rules made under subsection (2A) may, in particular, make provision with respect to the manner of taking and questioning evidence.
(1) In this section “case” means any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate.
(2) Rules of court may provide for the Court of Appeal, in such classes of case as may be specified in the rules, to have power, in place of ordering a new trial, to substitute for the sum awarded by the jury such sum as appears to the court to be proper.
(3) This section is not to be read as prejudicing in any way any other power to make rules of court.
11 Representation in certain county court and family court cases.
(1) The Lord Chancellor may , with the concurrence of the Lord Chief Justice, by order provide that there shall be no restriction on the persons who may exercise rights of audience, or rights to conduct litigation, in relation to proceedings in the county court of such a kind as may be specified in the order.
(2) The power to make an order may only be exercised in relation to proceedings—
(a) for the recovery of amounts due under contracts for the supply of goods or services;
(b) for the enforcement of any judgment or order of any court or the recovery of any sum due under any such judgment or order;
(c) on any application under the Consumer Credit Act 1974;
(d) in relation to domestic premises; or
(e) dealt with as a small claim in accordance with rules of court,
or any category (determined by reference to such criteria as the Lord Chancellor considers appropriate) of such proceedings.
(3) Where an order is made under this section, section 20 of the Solicitors Act 1974 (unqualified person not to act as solicitor) shall cease to apply in relation to proceedings of the kind specified in the order.
(4) Where the county court is of the opinion that a person who would otherwise have a right of audience by virtue of an order under this section is behaving in an unruly manner in any proceedings, it may refuse to hear him in those proceedings.
(5) Where the county court exercises its power under subsection (4), it shall specify the conduct which warranted its refusal.
(6) Where, in any proceedings in the county court—
(a) a person is exercising a right of audience or a right to conduct litigation;
(b) he would not be entitled to do so were it not for an order under this section; and
(c) the judge has reason to believe that (in those or any other proceedings in which he has exercised a right of audience or a right to conduct litigation) that person has intentionally misled the court, or otherwise demonstrated that he is unsuitable to exercise that right,
the judge may order that person’s disqualification from exercising any right of audience or any right to conduct litigation in proceedings in the county court.
(7) Where a judge makes an order under subsection (6) he shall give his reasons for so doing.
(8) Any person against whom such an order is made may appeal to the Court of Appeal.
(9) Any such order may be revoked at any time by any judge of the county court.
(9A) This section applies in relation to the family court as it applies in relation to the county court.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11) In this section “domestic premises” means any premises which are wholly or mainly used as a private dwelling.
(12) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under subsection (1) or (2).
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) In section 89(1) of the County Courts Act 1984 (goods which may be seized under any warrant of execution), the following paragraph shall be substituted for paragraph (a)—
(a) any of that person’s goods except—
(i) such tools, books, vehicles and other items of equipment as are necessary to that person for use personally by him in his employment, business or vocation;
(ii) such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of that person and his family;
.
(3) Where a person takes steps to enforce a judgment or order of the High Court , the family court or the county court for the payment of any sum due, the costs of any previous attempt to enforce that judgment shall be recoverable to the same extent as if they had been incurred in the taking of those steps.
(4) Subsection (3) shall not apply in respect of any costs which the court considers were unreasonably incurred (whether because the earlier attempt was unreasonable in all the circumstances of the case or for any other reason).
(1) Where an Order in Council has been made under section 29 designating a body as an authorised body, the Lord Chancellor may recommend to Her Majesty that an Order in Council be made revoking that designation.
(2) An Order under this section may only be made if—
(a) the authorised body has made a written request to the Lord Chancellor asking for it to be made;
(b) that body has agreed (in writing) to its being made; or
(c) the Lord Chancellor is satisfied that the circumstances at the time when he is considering the question are such that, had that body then been applying to become an authorised body, its application would have failed.
(3) The provisions of Part III of Schedule 4 shall have effect with respect to the revocation of designations under this section.
(4) An Order made under this section may make such transitional and incidental provision as the Lord Chancellor considers necessary or expedient.
(5) Where such an Order is made, any right of audience or right to conduct litigation granted to any person by the body with respect to whom the Order is made shall cease to have effect, subject to any transitional provision made by the Order.
(6) Where such an Order is made, the Lord Chancellor shall—
(a) give the body with respect to whom the Order is made written notice of the making of the Order;
(b) take such steps as are reasonably practicable to bring the making of the Order to the attention of the members of that body; and
(c) publish notice of the making of the Order in such manner as he considers appropriate for bringing it to the attention of persons (other than those members) who, in his opinion, are likely to be affected by the Order.
31B Advocates and litigators employed by Lord Chancellor .
(1) This section applies where a person—
(a) is authorised by a relevant approved regulator (“the regulator”) to carry on an activity which constitutes the exercise of a right of audience or the conduct of litigation, and
(b) is employed by the Lord Chancellor, or by any body established and maintained by the Lord Chancellor, under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
(1A) Any rules of the regulator which fall within subsection (2) shall not have effect in relation to that person.
(2) Rules of a regulator fall within this subsection if they are—
(a) conduct rules prohibiting or limiting the exercise of the right on behalf of members of the public by members of the regulator who are employees; or
(b) rules of any other description prohibiting or limiting the provision of legal services to members of the public by such members of the regulator,
and either of the conditions specified in subsection (3) is satisfied.
(3) Those conditions are—
(a) that the prohibition or limitation is on the exercise of the right, or the provision of the services, otherwise than on the instructions of solicitors (or other persons acting for the members of the public); and
(b) that the rules do not impose the same prohibition or limitation on members of the regulator who have the right but are not employees.
(4) For the purposes of this section “relevant approved regulator” is to be construed in accordance with section 20(3) of the Legal Services Act 2007.
(1) Where a person—
(a) has at any time been authorised by a relevant approved regulator to exercise a right of audience before a court in relation to proceedings of a particular description, and
(b) becomes authorised by another relevant approved regulator to exercise a right of audience before that court in relation to that description of proceedings,
any qualification regulations of the relevant approved regulator mentioned in paragraph (b) which relate to that right are not to have effect in relation to the person.
(2) Subsection (1) does not apply in relation to any qualification regulations to the extent that they impose requirements relating to continuing education or training which have effect in relation to the exercise of the right by all members of the relevant approved regulator who have the right.
(3) Subsection (1) does not apply to a person if he has been banned from exercising the right of audience by the relevant approved regulator mentioned in paragraph (a) of that subsection as a result of disciplinary proceedings and that relevant approved regulator has not lifted the ban.
(4) In this section “relevant approved regulator” is to be construed in accordance with section 20(3) of the Legal Services Act 2007.
(1) On the coming into force of section 27—
(a) solicitors shall be deemed to have been granted by the Law Society the rights of audience exercisable by solicitors (in their capacity as such) immediately before 7th December 1989; and
(b) the Law Society shall be deemed to have in force qualification regulations and rules of conduct which have been properly approved for the purposes of section 27.
(2) Those qualification regulations and rules of conduct shall be deemed to have been approved only—
(a) in relation to the rights of audience mentioned in subsection (1)(a); and
(b) so far as they relate to those rights of audience.
(3) If any particular provision of those regulations or rules would not have been approved for the purposes of section 27 had it been submitted for approval under Part I of Schedule 4 it (but no other such provision) shall not be deemed to have been approved.
(4) In the event of any question arising as to whether any provision is deemed to have been approved, subsection (5) shall apply in relation to that question if the Lord Chancellor so directs.
(5) Where a direction is given under subsection (4)—
(a) the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;
(b) the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question is deemed to have been so approved; and
(c) that provision shall not be deemed to have been so approved unless the Lord Chancellor and each of the designated judges are satisfied that it has been.
(6) In the event of any question arising as to whether any provision of the qualification regulations or rules of conduct of the Law Society requires to be approved by virtue of section 29(3) or (4), subsection (7) shall apply in relation to that question if the Lord Chancellor so directs.
(7) Where a direction is given under subsection (6)—
(a) the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;
(b) the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question requires approval; and
(c) it shall require approval unless the Lord Chancellor and each of the designated judges are satisfied that it does not require approval.
(8) Where, by virtue of subsection (5)(c), any provision is not deemed to have been approved—
(a) it shall cease to have effect, so far as it relates to any right of audience deemed to have been granted by the Law Society; and
(b) the regulations and rules which are deemed, by virtue of subsection (1)(b) to have been properly approved shall be taken not to include that provision.
(9) Nothing in this section shall affect the validity of anything done in reliance on any provision of regulations or rules at any time before—
(a) it is determined in accordance with subsection (5)(c) that that provision is not deemed to have been approved; or
(b) it is determined in accordance with subsection (7)(c) that that provision requires approval.
(1) On the coming into force of section 28—
(a) solicitors shall be deemed to have been granted by the Law Society the rights to conduct litigation exercisable by solicitors (in their capacity as such) immediately before 7th December 1989; and
(b) the Law Society shall be deemed to have in force qualification regulations and rules of conduct which have been properly approved for the purposes of section 28.
(2) Those qualification regulations and rules of conduct shall be deemed to have been approved only—
(a) in relation to the rights to conduct litigation mentioned in subsection (1)(a); and
(b) so far as they relate to those rights to conduct litigation.
(3) If any particular provision of those regulations or rules would not have been approved for the purposes of section 28 had it been submitted for approval under Part I of Schedule 4 it (but no other such provision) shall not be deemed to have been approved.
(4) In the event of any question arising as to whether any provision is deemed to have been approved, subsection (5) shall apply in relation to that question if the Lord Chancellor so directs.
(5) Where a direction is given under subsection (4)—
(a) the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;
(b) the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question is deemed to have been so approved; and
(c) that provision shall not be deemed to have been so approved unless the Lord Chancellor and each of the designated judges are satisfied that it has been.
(6) In the event of any question arising as to whether any provision requires to be approved by virtue of section 29(3) or (4), subsection (7) shall apply in relation to that question if the Lord Chancellor so directs.
(7) Where a direction is given under subsection (6)—
(a) the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;
(b) the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether the provision in question requires approval; and
(c) it shall require approval unless the Lord Chancellor and each of the designated judges are satisfied that it does not require approval.
(8) Where, by virtue of subsection (5)(c), any provision is not deemed to have been approved—
(a) it shall cease to have effect, so far as it relates to any right to conduct litigation deemed to have been granted by the Law Society; and
(b) the regulations and rules which are deemed, by virtue of subsection (1)(b), to have been properly approved shall be taken not to include that provision.
(9) Nothing in this section shall affect the validity of anything done in reliance on any provision of regulations or rules at any time before—
(a) it is determined in accordance with subsection (5)(c) that that provision is not deemed to have been approved; or
(b) it is determined in accordance with subsection (7)(c) that that provision requires approval.