Revised Laws of Saint Lucia (2021)

Legal Aid Regulations – Section 43

(Statutory Instrument 66/2018)

Statutory Instrument 66/2018 .. in force 20 August 2018

ARRANGEMENT OF REGULATIONS

PRELIMINARY

PART I
OATH OF SECRECY

PART II
APPLICATION FOR LEGAL AID

PART III
GRANT OR REFUSAL OF APPLICATION FOR LEGAL AID

PART IV
MISCELLANEOUS

LEGAL AID REGULATIONS – SECTION 43

Commencement [20 August 2018]

PRELIMINARY

1.   Citation

1.  

   These Regulations may be cited as the Legal Aid Regulations.

2.   Interpretation

In these Regulations —

“Act” means the Legal Aid Act, Cap. 2.17;

“aided person” means a person who has been granted a legal aid certificate and is entitled to legal aid, and, where that person is a child or vulnerable person, includes his or her next friend;

“attorney-at-law” means a person whose name is entered on the Roll under the Legal Profession Act, Cap. 2.04;

“civil case” means a legal action specified in Part A of Schedule 2 but does not include a legal action specified in Part B of Schedule 2;

“Civil Procedure Rules” means the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000;

“legal aid certificate” means a legal aid certificate issued under section 37 of the Act entitling a person to legal aid;

“minor” means a person who is under eighteen years of age;

“next friend” means —

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   (a)     a person appointed under Part 23 of the Civil Procedure Rules;

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   (b)     a tutor appointed under the Civil Code, Cap. 4.01; or

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   (c)     a curator appointed under the Civil Code, Cap. 4.01;

“opponent” means a party to a legal action under regulation 9 against the aided person, who disputes the legal action;

“rent” means a sum in respect of the yearly outgoings borne by the householder including a reasonable allowance towards any necessary expenditure on repairs and insurance and any other related sum;

“vulnerable person” means a person who suffers from a mental, physical, psychiatric or other disability.

PART I
OATH OF SECRECY

3.   Oath of Secrecy

A member, officer or employee of the Authority shall take the oath of secrecy in the form set out as Form 1 in Schedule 1.

PART II
APPLICATION FOR LEGAL AID

4.   Application for legal aid

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   (1)   For the purposes of section 32(2) of the Act, an application for legal aid must be in the form set out as Form 2 in Schedule 1.

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   (2)   An application for legal aid must contain such information as may be required by the Authority to determine —

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      (a)     the nature of the case;

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      (b)     the circumstances in which legal aid is required;

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      (c)     the disposable income of an applicant;

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      (d)     the disposable capital of an applicant; and

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      (e)     whether an applicant meets the requirements under the Act for legal aid.

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   (3)   An application under subregulation (1) must be submitted with any supporting documents required by the Authority including the following —

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      (a)     a national identification card of the applicant;

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      (b)     a national insurance card of the applicant;

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      (c)     a recent pay slip of the applicant representing any period within three months immediately prior to the application for legal aid, or a letter from the employer of the applicant indicating the income of the applicant for the last twelve months;

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      (d)     a recent pay slip of the spouse of the applicant or a letter from the employer of that spouse indicating the income of the spouse for the last twelve months;

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      (e)     an income tax statement of the applicant;

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      (f)     a record of the bank book, credit union pass book or bank statement of the applicant or his or her spouse;

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      (g)     the application fee; or

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      (h)     any other supporting documents required by the Authority to make a determination under subregulation (2)(a) to (e).

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   (4)   The Board may require an applicant to supply additional information or to attend an interview to provide such further information or documents as the Board considers necessary.

5.   Application by next friend

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   (1)   If an applicant is a minor or vulnerable person, an application under section 32 of the Act must be —

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      (a)     made by the next friend of that minor or vulnerable person who is appointed in proceedings before the Court for legal aid on behalf of that minor or vulnerable person; and

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      (b)     must be in the form set out as Form 2 in Schedule 1.

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   (2)   An application made under subregulation (1) must be accompanied by a written undertaking acknowledging the requirement of the next friend to pay any reasonable sum which the Board considers necessary in the case.

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   (3)   A next friend is treated for all purposes as the agent of the minor or vulnerable person in the case.

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   (4)   The Board may, where it considers appropriate, waive the requirements under subregulation (2).

6.   Application made in a representative, fiduciary or official capacity

If a person acts in a representative, fiduciary or official capacity with respect to an applicant, that person must make an application under section 32 of the Act in the form set out as Form 2 of Schedule 1.

7.   Notice to opponent

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   (1)   Subject to subregulations (2) and (3), the Board shall serve notice of an application for legal aid on an opponent or his or her attorney-at-law within seven days after an application is made for legal aid.

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   (2)   A notice under subregulation (1) must include —

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      (a)     information that an application for legal aid has been made;

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      (b)     a statement of the nature of the case;

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      (c)     the interest of the applicant in the case; and

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      (d)     a statement of the right of the opponent to make representations to the Board.

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   (3)   Subregulation (1) does not apply where the Board determines that—

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      (a)     the address of the opponent or his or her attorney-at-law —

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         (i)     is unknown, or

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         (ii)     could not reasonably be ascertained; or

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      (b)     service of the notice should be dispensed with or postponed.

8.   Right of opponent to make representations

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   (1)   An opponent may, within six days of being served with a notice under regulation 7(1), make representations in writing to the Board.

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   (2)   The Board shall consider any representations made by an opponent before determining an application for legal aid.

PART III
GRANT OR REFUSAL OF APPLICATION FOR LEGAL AID

9.   Grant of application for legal aid

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   (1)   The Board may grant legal aid to an applicant in accordance with section 35(1) of the Act for a —

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      (a)     criminal case, which is at the trial stage and where the offence is punishable by capital punishment or life imprisonment;

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      (b)     civil case, in which litigation has not commenced;

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      (c)     criminal case, on appeal from the High Court to the Court of Appeal; or

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      (d)     civil case, on appeal.

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   (2)   Notwithstanding subregulation (1)(c) and (d), the Board may grant legal aid in such special appeal cases as it determines to be meritorious, for the purpose of enabling an applicant to apply for leave or special leave to appeal to the court of final appellate jurisdiction specified under the Constitution of Saint Lucia, Cap. 1.01.

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   (3)   Where the Board approves an application for legal aid under subregulation (2), the necessary disbursements and costs of instructing an attorney-at-law shall be met by the Authority.

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   (4)   Where a person applies for legal aid in connection with any proceedings in which he or she is concerned in a representative, fiduciary or official capacity and it appears to the Board that the person is entitled, whether by an Order of the Court or otherwise, to be indemnified in respect of his or her expenses in connection with the proceedings out of a fund or by a third party, the Board, notwithstanding section 35 of the Act, shall grant legal aid only if it is satisfied that —

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      (a)     the fund cannot reasonably be expected to bear the expense of the proceedings; or

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      (b)     the third party would himself or herself, if he or she were a party to the proceedings, be entitled to legal aid.

10.   Refusal of application for legal aid

The Board may refuse legal aid to an applicant for the reasons stated under section 35(2) of the Act.

11.   Determination of disposable capital

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   (1)   In assessing the eligibility of the applicant to legal aid, the Board shall determine the disposable capital of an applicant under section 35(1)(c) and 39(1)(a) of the Act in accordance with this regulation.

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   (2)   Where it is brought to the attention of the Board that, between the date an application for legal aid is made and the date of its determination —

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      (a)     there has been a substantial variation in the value of the property of the applicant;

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      (b)     property belonging to the applicant has ceased to exist; or

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      (c)     there is new property owned by the applicant,

the Board shall compute the disposable capital of the applicant after considering these facts and the disposable capital as computed must be considered in the determination of the disposable capital of the applicant.

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   (3)   Where the property of the applicant does not consist of money, the amount or value of the property is —

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      (a)     the amount which that property would realize if sold on the open market;

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      (b)     if there is only a restricted market for that property, the amount which that property would realize on that market; or

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      (c)     the value to be assessed by the Board in a manner that appears to be just and equitable.

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   (4)   Where the applicant resides in more than one dwelling house in which he or she has an interest, the Board shall decide which dwelling house is the main dwelling house and shall take into account the value or interest in the other dwelling house, which might be obtained by borrowing money on the security of that dwelling house.

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   (5)   The value of a life insurance policy of an applicant is the amount which the applicant can readily borrow on the security of the life insurance policy.

12.   Determination of disposable income

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   (1)   In assessing the eligibility of the applicant to legal aid, the Board shall determine the disposable income of an applicant under section 35(1)(d) and 39(1)(b) of the Act in accordance with this regulation.

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   (2)   The income of an applicant includes —

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      (a)     the income information given by an applicant under regulations 3(2) and 3(3);

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      (b)     earnings, such as, a pension, relief under the Public Assistance Act, Cap. 13.22 or any benefit receivable by the applicant from the State;

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      (c)     a financial contribution received by the applicant towards the payment of rent; and

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      (d)     the income of an applicant from a trade, business or gainful occupation which the Board determines is a profit from that trade, business or gainful occupation that accrued or will accrue to the applicant in respect of the period of computation, but excludes employment at a wage or salary.

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   (3)   The Board may compute the profit under subregulation (2)(d) by —

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      (a)     considering the profit of the last accounting period of the trade, business or gainful occupation for which accounts have been prepared; and

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      (b)     allowing a deduction of all sums necessarily expended to earn the profit.

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   (4)   Notwithstanding subregulation (3), the living expenses of the applicant or a member of his or her family or household shall not be deducted, unless the applicant or that member of his or her family or household is wholly or mainly employed in a trade, business or gainful occupation and the living expenses form part of his or her income.

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   (5)   When the income of the applicant consists of a wage or salary from employment, the following deductions apply in computing his or her disposable income —

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      (a)     the reasonable expenses of travelling to and from his or her place of employment;

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      (b)     the amount of any payments reasonably made for membership of a trade union or professional organization; and

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      (c)     the amount of any contribution paid, whether under a legal obligation or not, to a pension scheme.

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   (6)   The disposable income of an applicant does not include the disposable income of the spouse of that applicant where —

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      (a)     the spouse has a contrary interest in the case for which an application for legal aid is made; or

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      (b)     the Board is satisfied that the applicant and his or her spouse are legally separated.

13.   Contribution

The Board shall determine the contribution required of an applicant under section 39(1) of the Act in accordance with Schedule 3.

14.   Determination of disposable capital, disposable income and contribution of a representative, fiduciary or official

Notwithstanding regulations 11, 12 and 13, for the purpose of determining the disposable capital, disposable income or the amount of contribution required under section 39 of the Act, the Board shall disregard the personal resources of a person who is concerned in the case only in a representative, fiduciary or official capacity but shall consider the value of any property, the amount of any fund out of which that person is entitled to be indemnified, the disposable capital and the disposable income of any person, including the applicant, if appropriate, who might benefit from the outcome of the case.

15.   Reduction of disposable capital or disposable income

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   Where it appears to the Board that a person —

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      (a)     has been directly or indirectly deprived of property or income; or

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      (b)     converts any part of his or her property or income into resources which are to be wholly or partly excluded or in respect of which nothing is to be included in determining the disposable capital or disposable income of that person,

with intent to reduce his or her disposable capital or disposable income, whether for the purpose of making himself or herself eligible for legal aid, or reducing his or her liability to pay a contribution towards legal aid or otherwise, the property or income of which he or she has so deprived himself or herself or which he or she has so converted is treated as part of his or her disposable capital or disposable income.

16.   Reassessment of disposable capital and disposable income

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   (1)   The Board may reassess the disposable capital and disposable income of an aided person at any time while the aided person is in receipt of legal aid or within a reasonable time subsequently.

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   (2)   Subject to regulation 17, and following the reassessment under subregulation (1), if the aided person's disposable capital or disposable income has increased, he or she may be required to pay a higher contribution subject to the condition that the total payment required by the Board shall not exceed the cost to the Board in the particular case.

17.   Power of Board to amend determination

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   (1)   Where the Board is satisfied that there has been some error or mistake in the determination of a person's disposable capital, disposable income or contribution and that it would be just and equitable to correct that error or mistake, the Board may make an amended determination in accordance with the law applicable at the time of the original determination which shall have effect for all purposes as if it were the original determination.

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   (2)   Where the Board is satisfied that the disposable capital or disposable income of an aided person has increased, it may make an amended determination of the disposable capital, disposable income and contribution of an aided person in accordance with the law applicable at the time of the original determination, and in that event the amount or value of any property or income shall be ascertained as at the date of the amended determination.

18.   Acceptance of offer for legal aid

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   (1)   After the Board grants an application for legal aid, the Executive Director shall give notice to the applicant of —

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      (a)     the maximum amount of his or her contribution; and

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      (b)     the terms on which a legal aid certificate will be issued.

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   (2)   An applicant may, within fourteen days of receipt of the notice under subregulation (1), signify his or her acceptance of the terms in the form set out as Form 3 in Schedule 1 and submit that Form to the Executive Director.

19.   Endorsement on legal aid certificate

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   (1)   An aided person may select an attorney-at-law, or the Board may assign an attorney-at-law to an aided person, from the register prepared and maintained by the Board under section 22 (1) of the Act to provide legal advice and consultation to an aided person in a case.

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   (2)   In accordance with section 36 of the Act, the Authority shall endorse the name of the attorney-at-law under subregulation (1) on the legal aid certificate.

20.   Issuance and form of legal aid certificate

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   (1)   For the purposes of section 37 of the Act, a legal aid certificate must be in the form set out as Form 5 in Schedule 1.

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   (2)   A legal aid certificate —

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      (a)     shall be issued in relation to a specific case;

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      (b)     must bear the endorsement under regulation 19;

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      (c)     shall not relate to proceedings in the Court of first instance or in the Court of Appeal;

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      (d)     must not relate to more than one action but may include proceedings for the enforcement of an order or agreement in the matter.

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   (3)   A legal aid certificate issued as a result of an application by a next friend on behalf of a minor or vulnerable person must be in the name of the minor or vulnerable person, stating the name of the next friend by whom a minor or vulnerable person has applied.

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   (4)   The Executive Director may amend a legal aid certificate —

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      (a)     where it appears to him or her that there has been some error or mistake in the legal aid certificate;

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      (b)     where in the opinion of the Authority, it has become desirable for the legal aid certificate —

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         (i)     to extend to other proceedings, being part of the same matter to which the legal aid certificate relates, or

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         (ii)     not to extend to certain parts of the proceedings in respect of which the legal aid certificate was issued;

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      (c)     when an aided person desires to change his or her attorney-at-law; or

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      (d)     when an attorney-at-law withdraws from the case of an aided person.

21.   Status Report

An attorney-at-law shall submit a status report in the form set out as Form 6 in Schedule 1 and an account of his or her fees and expenses incurred to the Board in respect of the conclusion and outcome of the proceedings in respect of which he or she has provided legal aid to an aided person.

22.   Fees for attorney-at-law

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   (1)   Subject to subregulation (2), an attorney-at-law who is selected by an aided person or assigned by the Authority is entitled to consultation fees for each case.

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   (2)   An attorney-at-law who wishes to obtain any fees or expenses shall submit to the Board an account of the fees or expenses.

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   (3)   The Board may consider an account of fees or expenses submitted by an attorney-at-law in accordance with the fee structure outlined in Schedule 4.

23.   Change of attorney-at-law

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   (1)   Where an attorney-at-law who is selected by an aided person or who is assigned by the Authority to an aided person determines that he or she should cease to act for that person, the attorney-at-law shall notify the aided person and the Board and shall give the Board a statement of his or her reasons for ceasing to act.

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   (2)   Where an aided person requires that an attorney-at-law selected by him or her should cease to act for him or her, the attorney-at-law shall notify the Board.

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   (3)   An aided person may apply to the Board to select an attorney-at-law, other than the selected attorney-at-law, to act for him or her and shall state on the application, the reason that the selected attorney-at-law should cease to act for him or her.

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   (4)   Where the Board is satisfied that there is good reason for the application under subregulation (3) and that it is reasonable in the particular circumstances of the case for the aided person to continue to receive legal aid, the Board may grant the application.

24.   Abuse of legal aid

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   (1)   Where an attorney-at-law of an aided person has reason to believe that the aided person has —

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      (a)     required his or her case to be conducted unreasonably so as to incur an unjustifiable expense to the Fund or has required unreasonably that the case be continued; or

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      (b)     willfully failed to comply with any requirement of the Act or of these Regulations as to the information to be furnished by him or her, and in furnishing such information, has knowingly made a false statement or false representation,

the attorney-at-law shall immediately report the matter to the Board.

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   (2)   An attorney-at-law is not precluded, by reason of any privilege arising out of the relationship between the attorney-at-law and the aided person, from disclosing to the Board any information, or from giving any opinion, which he or she is required to disclose or give to the Board under the Act or these Regulations, or which may enable the Board to perform its functions.

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   (3)   Where the attorney-at-law who is selected by the aided person or assigned by the Authority is believed to be abusing the process of legal aid and this is proved, the Board shall require the attorney-at-law to withdraw from the matter with immediate effect.

PART IV
MISCELLANEOUS

25.   Form of register

For the purposes of section 41(1) of the Act, the Executive Director shall keep and maintain a register in the form set out as Form 7 in Schedule 1 to record all aided persons.

26.   Duty to report change of circumstances

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   (1)   Subject to subregulation (2), where an aided person becomes aware of any change of circumstances, financial or otherwise, he or she shall immediately inform the Board.

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   (2)   For the purposes of subregulation (1), any change of circumstances must be recorded in the form set out as Form 8 in Schedule 1.