| Costs |
Guideline: State
Number: 11 Effective Date: 6/96 |
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| 11.1 | Solicitor's Obligation to Protect Costs | ||
| A solicitor shall retain control of any money or property that comes into the solicitor's possession or control up to a maximum amount of a 100% contribution to the Legal Aid Commission until a determination has been made as to what costs and disbursements are to be repaid to the Legal Aid Commission by the legally aided person. Upon such determination, the solicitor shall pay to the Legal Aid Commission the assessed sum. | |||
| 11.2 | Solicitor's Responsibility for Costs | ||
| Applications brought to correct faults of a procedural nature occurring due to mistake of the solicitor or counsel or of a solicitor or counsel within the same firm bringing the application, will not be paid for by the Legal Aid Commission and may not be charged to the client. | |||
| 11.3 | Guidelines Pursuant To Section 26(2)(a) of the Legal Aid Commission Act 1990 | ||
| A solicitor or a barrister shall not accept any payment from a legally aided person (or from any other person on their behalf) in relation to a legally aided matter other than those payments which may be authorised by the Legal Aid Commission. A solicitor who does so may face sanction under Section 22(3)(b) of the Legal Aid Commission Act 1990. | |||
| 11.3.1 | A request that the Commission pay to another party on behalf of the legally assisted person an amount representing the whole or part of the costs directed to be paid by the legally assisted person shall be made in writing to the Director and shall be supported by such material as the Director may require, verified by the Statutory Declaration of the person making the request. | ||
| 11.3.2 | The Commission shall not pay any amount pursuant to such a request unless the officer or the Legal Aid Committee deciding the request is satisfied that the legally assisted person will suffer substantial hardship unless the amount requested to be paid, or some lesser amount, is paid. | ||
| 11.3.3 | The Commission shall not pay an amount upon the request of the legally assisted person if, in the opinion of the officer or Legal Aid Committee deciding the request, the legally assisted person failed to disclose any significant and relevant matter in his/her application for assistance or where he/she was specifically advised that the Commission would not meet any order for costs made against him/her. | ||
| 11.3.4 | In making a decision upon a request, by the legally assisted person or the other party, the officer or Legal Aid Committee shall have regard, inter alia, to the following matters: | ||
| a. | the effect on the person making the request and on the legally assisted person of the result of the proceedings; | ||
| b. | the effect on the person making the request and on the legally assisted person of a refusal to meet the request in whole or in part; | ||
| c. | the amount at issue in the proceedings; | ||
| d. | the amount at issue between the parties by way of costs; | ||
| e. | any other action or remedy available to the person making the request or to the legally assisted person; | ||
| f. | the conduct of the person making the request during the proceedings; | ||
| g. | the conduct of the legally assisted person during the proceedings; | ||
| h. | whether or not the Commission was given any notice of the likelihood of the making of an order for costs against the legally assisted person and of the likely amount of such costs; | ||
| i. | whether or not the matter or proceeding was in the nature of a test case having a potential benefit to persons other than the legally assisted person or the person making the request, being persons likely to be within the Means Test determined by the Commission; and | ||
| j. | the funds available to the Commission for the purpose of meeting the request and the effect of meeting the request in whole or in part on the capacity of the Commission to provide legal assistance in the future. | ||
| 11.3.5 | In determining whether or not a person will suffer substantial hardship, regard shall be had by the officer or Legal Aid Committee to, inter alia, the following matters: | ||
| a. | whether the person or another person who usually resides with him will lose or be forced to vacate his home; | ||
| b. | whether the person will lose a motor vehicle or the use of a motor vehicle, reasonably necessary for domestic or employment purposes; | ||
| c. | whether the person will lose furniture or effects reasonably necessary for the well-being of himself and his dependants; and | ||
| d. | whether the person will lose his employment or livelihood. | ||
| 11.3.6 | No reimbursement of costs and disbursements exceeding $5,000.00 will be made by the Commission. | ||
| 11.4 | Acceptance of Party/Party Costs | ||
| Where the amount of party/party costs are agreed or fixed by way of agreement, order, taxation or in any other manner binding on the parties then the solicitor acting for the legally assisted person shall be entitled to retain such amount and will not be required to tender an itemised account to the office provided that: | |||
| a. | No further payment by way of costs, counsel's fees, disbursements, witnesses expenses, or otherwise shall be claimed or received by or on behalf of the solicitor from the legally assisted person or any person on his/her behalf. | ||
| b. | Such amount shall be accepted as full payment by the solicitor of all costs, disbursements and counsel's fees and witnesses or other expenses as are incurred by him/her in relation to the matter for which legal assistance has been granted. | ||
| 11.5 | Application for Costs | ||
| a. | Where an Applicant or party to a proceeding has a right to make an Application for Costs, the Commission requires such Application to be made in all cases, save and except where the Commission instructs a practitioner not to proceed with such application. | ||
| b. | Where the application is against the Crown as a result of criminal proceedings, costs orders should only be sought where the applicant for aid has made a substantial contribution to the grant. | ||
