Section 30 of the Access to Justice Act 1999 enables the Lord Chancellor to prescribe those bodies who may benefit from the costs recovery provisions relating to membership schemes. Section 30 came into force on 1 April 2000.
On 30 March 2000 the Lord Chancellor issued a press notice which announced:
Section 30 of the Access to Justice Act provides that regulations may prescribe bodies that can recover a sum towards the provision made to protect the member against the risk of having to meet an opponent's costs and their own disbursements.
It also allows for regulations to prescribe the maximum amount that can be recovered in this way. In particular it provides that the way the recoverable sum is to be determined may be prescribed so that it may take into account the costs of commercial insurance. The provisions apply to bodies of a "prescribed description" which undertake to meet liabilities of members or other persons as a description of such a body "one which is for the time being approved by the Lord Chancellor" or a prescribed person.
Potential applicants should note that 'Membership Organisations' as well as supporting members' cases and assuming liability for any costs incurred, they automatically take on the risk of being liable to pay the winning side's costs should they lose their case in any court proceedings.
Secondly, an organisation does not have to become a prescribed organisation to enable the use of Collective Conditional Fee Agreements (Ccfas) and there is no reason why a membership organisation should not make use of a cfa or an insurance policy in their place. Ccfas are an entire separate provision from membership organisation prescription under Section 30 of the Access to Justice Act 1999.
Collective cfas are made under Section 27 of the Act and are merely a variant of a cfa. They enable bulk providers and purchasers of legal services such as trade unions, insurers or membership organisations to enter into single agreements with solicitors which govern the way in which cases for its members shall be run and paid for. Ccfas provide common terms for the common elements and an individual risk assessment and also an individual success fee for each individual case. The collective agreement allows economies of scale, reduces regulatory burdens on business and membership organisations and supports the competitiveness of providers of legal services. There are no restrictions on who can provide or use Ccfas.
Rather than set down rigid criteria for prescription in regulations it was announced that the Lord Chancellor would adopt a flexible approach with each application for approval treated on its merits.
In deciding whether an organisation should be approved, the Lord Chancellor would take account of any relevant representations in its application for approval, but would consider, so far as it is relevant, whether the organisation in question:
Along with the Trade Unions of England and Wales listed by the Certification officer at 31 March 2000, the Lord Chancellor has approved the following organisations as approved membership organisations under section 30 of the Access to Justice Act 1999:
Organisations seeking the approval of the Lord Chancellor as prescribed bodies for the purposes of section 30 of the Act should apply in writing, setting out the basis on which they seek approval, to:
Aleks Leonard
Claims Management & Private Funding Branch
Legal Services Regulation & Redress Division
3rd Floor, Selborne House
54/60 Victoria Street
London SW1E 6QW
Phone: 020 7210 8052
Fax: 020 7210 0613
email