Legal Aid

Eligibility - Civil

How can I find out if I am eligible for Legal Aid?

Eligibility for legal aid is contained within the Legal Aid Regulations 2020. This page will offer a very brief overview of how eligibility is calculated but it should be remebered that the Legal Aid Administrator retains discretion to grant legal aid to a person who would not normally be eligible but in the all the circumstances it is consistent with the purpose of the legal aid scheme and in the interests of justice to do so. If you feel you need the assistance of a legal practitioner, you should make an appointment to see one and discuss your options with them.

What is the purpose of the Legal Aid Scheme?

(3) The purpose of the legal aid scheme is to enable a person to obtain a reasonable level of financial assistance to secure such legal services as may be necessary or appropriate in all the circumstances in relation to ⎯

(a) a civil law matter; or

(b) civil proceedings or criminal proceedings that may be or have been commenced in any court in the Falkland Islands.

(4) The purpose of the legal aid scheme is to be achieved in a manner that fairly balances that purpose with responsibly administering the public funds appropriated for the legal aid scheme.

[taken from section 5 Legal Aid Ordinance 2020]

Types of Civil Legal Aid

There are three types of civil legal aid available;

1) Civil Advice and Assistance;

2) Civil Representation not subject to a means test; and

3) Civil Representation in all other cases

This page will go through each type of certifacte and then explain what the means and merits test is at the end.

Civil Advice and Assistance

Civil advice and assistance legal aid is available to a person who meets the financial eligibility criteria for any civil matter except:

(a) a conveyance of property;

(b) a deed or other document dealing with a change of name;

(d) an application for planning permission under the Planning Ordinance 1991;

(e) an application for a building permit under the Building Regulations 1999;

(f) administration or winding up of a deceased person’s estate; or

(g) representation in any proceedings.

Please note, civil advice and assistance is available for a maximum of two hours work. Please see regulation 21 of the Legal Aid Regulations 2020 for further information.

Civil Representation not subject to a means test

This certificate is available to a person who is, or wishes to

(a) participate as a party to proceedings —

(i) concerning the wardship of a child;

(ii) under Part 4 (Care and supervision) or Part 5 (Protection of children) of the Children Ordinance 2014; or

(iii) under the Mental Health Ordinance 2010 concerning an application or referral to the Mental Health Tribunal;

(b) examine a witness in an inquest into the death of a child.

The legal aid administrator will apply the merits test to any application received for this certificate. For further information, please see Section 12 of the Legal Aid Ordinance 2020.

Civil Representation in all other cases

This certificate is available for all civil proceedings, except:

(a) defamation;

(b) breach of copyright, a patent or a trademark;

(d) arbitration or conciliation;

(e) winding up or dissolving a company, or restoring a company to the Register of Companies;

(f) an application for probate or letters of administration of an estate;

(g) proceedings under the Electoral Ordinance 1988;

(h) proceedings instituted to enforce a mortgage or other charge over property;

(i) proceedings under the Licensing Ordinance 1994 except an application for a prohibition order under section 76 of that Ordinance;

(j) a relator action; or

(k) prescribed proceedings.

The prescribed proceedings are proceedings:

(a) relating to the recovery of any debt or other property of an amount or value of less than £5,000;

(b) by the applicant for possession of any premises;

(c) in the Tax Appeal Tribunal or any other Tribunal established by law; or

(d) in the Summary Court under the Employment Protection Ordinance 1989.

(2) A civil representation certificate for a personal injury claim arising from an accident at work may only be granted if the circumstances of the accident are not covered by, or the damages recoverable through civil proceedings are likely to be substantially greater than, the compensation payable under any law in force in the Falkland Islands which provides for the payment of workmen’s compensation.

(3) Save in exceptional circumstances, a civil representation certificate may only be granted in relation to matrimonial proceedings for

(a) a financial order of any kind for the benefit of —

(i) the applicant; or

(ii) any child of the applicant or of the applicant’s spouse or former spouse; and

(b) the custody, care, control, welfare, maintenance or upbringing of or access to any child arising out of the matrimonial proceedings.

(regulation 4, Legal Aid Regulation 2020)

An application for Civil Represenation will be subject to the means test and the financial eligibility as set out below.

If you become entitled to proceeds of proceedings (an award of the court) you will be required to reimburse the legal aid fund, please see regulation 25 of the Legal Aid Regulations for further information.

Merits Test

The below is taken from section 15 of the Legal Aid Ordinance 2020.

(1) When determining whether it is in the interests of justice to grant, vary or terminate legal aid, the Administrator or court must consider the nature of the legal services the person needs, including whether —

...

(b) in relation to civil proceedings, it is reasonable in all the circumstances for the case to be brought or defended or for the person otherwise to participate in the proceedings;

(c) in the course of the proceedings in which the person is concerned, —

(i) a constitutional issue or other substantial question of law is likely to be raised; or

(ii) a matter of public interest is likely to be raised; or

(d) the particular characteristics of the person (including, but without limitation, the person’s age, state of physical or mental health, any physical or mental disability, or understanding of and ability to communicate in English) may affect the person’s ability to protect their own interests or represent themselves in criminal or civil proceedings.

Financial Eligibility

There are 2 parts to calculating your financial eligibilty;

1) Capital Assets; and

2) Relevant Annual Income

Capital Assets

If your relevant capital exceeds £10,500 you will not be eligible for a civil representation certificate.

Relevant capital means any assets in the Falkland Islands and elsewhere of the applicant and the applicant's spouse including -

(a) all savings, shares and other investments;

(b) cash or other items of value but disregarding any single item of which the value is less than £1,000;

(d) property but disregarding the value of the equity in the applicant’s principal private dwelling up to a value of £200,000.

(regulation 9, Legal Aid Regulations 2020)

Relevant Annual Income

If your relevant annual income is £18,501 or more you are not eligible for a civil representation or civil advice and assistance certificate.

To calculate your relevent annual income the legal aid administrator will have regard to regulation 10 of the Legal Aid Regulations 2020 which provides the following:

(2) Subject to subregulation (3), an applicant’s relevant annual income is the gross annual income of the applicant and the applicant’s spouse after deduction of allowable housing costs and any allowance for family members.

(3) When calculating the relevant income —

(a) welfare allowances are disregarded; and

(b) if the applicant and the applicant’s spouse are or are likely to be opposing parties in any civil proceedings, the gross income of the applicant’s spouse is disregarded and the allowance for family members does not include an allowance for the applicant’s spouse.

(4) In this regulation —

“allowance for family members” means —

(a) except in the circumstances mentioned in subregulation (3)(b), an allowance of £2,600 per annum for the applicant’s spouse;

(b) an allowance for each child living with the applicant as a member of the applicant’s family —

(i) £1,100 per annum for the first child; and

(ii) £550 per annum for each subsequent child.

(c) an allowance for any other child of the applicant, whichever is the less of —

(i) a sum equivalent to the sum paid towards the child’s maintenance annually, whether under a court order or otherwise;

(ii) if no allowance is made under paragraph (b), £1,100 per annum for the first child or, if such allowance is made, £550 for the first child and in either case £550 per annum for each subsequent child;

but allowance shall not be made under paragraphs (b) and (c) for more than five children in total or £3,300 per annum;

“allowable housing costs” means the total annual payments up to £11,000 per year made under—

(a) a mortgage or tenancy agreement relating to the applicant’s principal place of residence;

(b) any other agreement evidenced in writing under which the applicant resides with another person, not including any contribution to the household budget for heating, lighting, water rates and food; and

“child” means any person under the age of 16 years or, if in full-time education or training, under 18 years.

Scale of Financial Eligibility & Required Contribution

Below is the table of eligibility, which can be found in the Legal Aid Regulations. Once your relevant capital and annual income are calculated, the legal aid administrator wil apply the below table in assessing if you are eligible, and if you are required to pay a contribution towards the legal services provided.

Why does the application form ask for more information?

The application form may request further infromation from the applicant because the legal aid administrator retains a discretion to grant legal aid to individuals where it is in the interests of justice to do so. This discretion also extends to circumstances in which the contribution may be reduced or waived. There is no requirement for the applicant to provide any information beyond what is required for the purpose of calculating their relevant capital and annual income.

You must ensure that all information provided in connection with your application is true, accurate and complete in all material aspects. The legal aid administrator may take into account any failure to comply with requests for information when considering whether it is in the interests of justice to grant, vary or terminate legal aid.

What happens to my information once it is provided to the Legal Aid Administrator?

Legal Aid records, including applications and financial information, are stored by the court in line with Falkland Islands Government Financial Information Retention Schedules.

The legal aid administrator, or a person who carries out duties under the authority of the administrator, may not give or provide any information acquired under the Legal Aid Ordinance except:

(a) in the course of carrying out the person’s duties for or in connection with the administration of the Legal Aid Ordinance;

(b) with the authority of the applicant or assisted person, as the case may be;

(d) in accordance with a court order.