The Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 2005
| Jurisdiction | UK Non-devolved |
| Citation | SI 2005/3382 |
| Year | 2005 |
2005 No. 3382
PROCEEDS OF CRIME, ENGLAND AND WALES
PROCEEDS OF CRIME, NORTHERN IRELAND
The Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 2005
Made 3rd December 2005
Laid before Parliament 8th December 2005
Coming into force 1st January 2006
The Lord Chancellor makes the following Regulations in exercise of the powers conferred upon him by sections 286A, 286B and 459(2) of the Proceeds of Crime Act 20021and articles 198, 199 and 5(2) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 20052.
He has consulted in accordance with sections 286A(4) and 286B(3) of that Act and articles 198(4) and 199(3) of that Order.
PART 1
Introduction
Citation and commencement
1. These Regulations may be cited as the Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 2005 and shall come into force on 1st January 2006.
Interpretation
2.—(1) In these Regulations—
“the 1990 Act” means the Courts and Legal Services Act 19903;
“the 2002 Act” means the Proceeds of Crime Act 20024;
“CPR” means the Civil Procedure Rules 19985;
“the Order in Council” means the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005;
“RSC (NI)” means the Rules of the Supreme Court (Northern Ireland) 19806;
“civil recovery proceedings” means proceedings under Part 5 of the 2002 Act or Part 5 of the Order in Council;
“notice” means notice in writing;
“solicitor” means a solicitor of the Supreme Court and, in relation to England and Wales, includes any other person who is an authorised litigator within the meaning of section 119(1) of the 1990 Act.
(2) Any reference in these Regulations to the assessment of legal expenses by the court shall, in relation to Northern Ireland, be interpreted as referring to the taxation of those expenses by the Master (Taxing Office).
PART 2
Required conditions: general
Effect of this part
3. This Part specifies the required conditions for the purposes of sections 245C(5) and 252(4) of the 2002 Act and articles 149(5) and 157(4) of the Order in Council.
Condition relating to work covered by exclusion
4. An exclusion from a property freezing order or interim receiving order must specify—
(a) the stage or stages in civil recovery proceedings to which it relates; and
(b) the maximum amount which may be released in respect of legal expenses for each stage to which it relates.
Condition relating to notification
5. If the solicitor acting for the person to whose legal expenses the exclusion relates becomes aware that—
(a) that person’s legal expenses in respect of any stage in civil recovery proceedings have exceeded or will exceed the maximum amount specified in the exclusion for that stage; or
(b) that person’s total legal expenses in respect of all the stages to which the exclusion relates have exceeded or will exceed the total amount that may be released pursuant to the exclusion,
the solicitor must give notice to the Director and the court as soon as reasonably practicable.
Condition relating to payment of expenses
6. Where a person has incurred legal expenses in relation to a stage in civil recovery proceedings specified in an exclusion—
(a) during any period when the property freezing order or interim receiving order has effect, a sum may only be released in respect of those expenses in accordance with Part 3;
(b) where the court makes a recovery order which provides for the payment of that person’s reasonable legal expenses in respect of civil recovery proceedings, the sum payable in respect of his legal expenses shall be determined in accordance with Part 4, regardless of whether a sum has been released in respect of any of those expenses under Part 3.
PART 3
Required conditions: release of interim payments
Effect of this Part
7. This Part applies where, during a period when a property freezing order or interim receiving order has effect, a person to whose property the order applies seeks the release of a sum in respect of his legal expenses pursuant to an exclusion from the order.
Request for Director’s agreement to release of interim payment
8.—(1) A request for the Director’s agreement to the release of a sum in respect of legal expenses pursuant to an exclusion must be made in writing to the Director by the person to whose expenses the exclusion relates.
(2) The request must—
(a)
(a) describe the stage or stages in the civil recovery proceedings in relation to which the legal expenses were incurred;
(b)
(b) summarise the work done in connection with each stage;
(c)
(c) be accompanied by any invoices, receipts or other documents which are necessary to show that the expenses have been incurred; and
(d)
(d) identify any item or description of property from which the person making the request wishes the sum to be released.
(3) A person may not make a request under this regulation—
(a)
(a) in respect of legal expenses which he has not yet incurred; or
(b)
(b) more than once in any 2 month period.
Director’s response to request
9.—(1) Not later than 21 days after he receives the request, the Director must give notice to the person who made the request stating—
(a)
(a) whether he agrees to the release of the requested sum; and
(b)
(b) if he does not agree to the release of the requested sum—
(i) the amount (if any) which he agrees may be released; and
(ii) the reasons for his decision.
(2) Where an interim receiving order applies to the property from which it is proposed that the requested sum should be released, the Director must at the same time send copies of the request and the notice referred to in paragraph (1) to the interim receiver.
(3) In determining the amount which may be released in respect of legal expenses with his agreement, the Director must have regard to the provisions of Part 5 which would apply on the assessment of those expenses by the court.
Release of interim payment
10.—(1) The sum which may be released pursuant to the exclusion is the greater of—
(a)
(a) the amount which the Director agrees may be released; and
(b)
(b) 65% of the requested sum.
(2) The sum may only be released to—
(a)
(a) the solicitor who is instructed to act in the civil recovery proceedings for the person to whose legal expenses the exclusion relates; or
(b)
(b) where appropriate, to the solicitor who was so instructed when the legal expenses to which the sum relates were incurred.
PART 4
Agreement or assessment of expenses at conclusion of civil recovery proceedings
Effect of this Part
11. This Part specifies the procedure for determining the amount payable in respect of a person’s reasonable legal expenses in civil recovery proceedings, where the court has made a recovery order which provides for the payment of those expenses.
Agreement of expenses by the Director
12.—(1) This regulation applies where a person seeks the Director’s agreement to the payment of a sum in respect of his legal expenses pursuant to section 266(8B)(a) of the 2002 Act or article 177(11)(a) of the Order in Council.
(2) In determining the amount which may be paid in respect of legal expenses with his agreement, the Director must have regard to the provisions of Part 5 which would apply on the assessment of those expenses by the court.
(3) Where the Director agrees to the payment of the sum which a person seeks in respect of his legal expenses—
(a)
(a) he shall give that person and the trustee for civil recovery notice of the agreed sum; and
(b)
(b) the sum payable in respect of those expenses shall be the agreed sum.
Expenses to be assessed if not agreed
13.—(1) Unless the Director agrees to the payment of the sum which a person seeks in respect of his legal expenses pursuant to provision made in a recovery...
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