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Unreasonable behaviour by persons in receipt of legal services

Reg. 9(3)(c) and (e)

In addition the Board may terminate legal services on the basis of the person’s behaviour including where it considers that the person is behaving unreasonably in the context of the court proceedings. It is considered that there are two particular aspects to this namely:

  • the person’s general behaviour; and
  • the person’s approach to, or instructions in, the court proceedings.

The è Administrative Procedures Handbook gives examples of what might constitute unreasonable behaviour. These are examples only and in determining the unreasonableness of any behaviour regard has to some extent to be had to the nature of the issue that is the subject matter of the dispute. For example it is acknowledged that persons who are facing applications to have their children taken into care are likely to be experiencing a number of problems and to be very emotional about the prospect of losing the care of their child. It cannot be expected that their behaviour will necessarily match the behaviour of for example a client with a plaintiff personal injury case. This is not to say that legal aid will never be terminated in such circumstances – the Board will always have regard to any threat to the health or welfare of its staff in such instances.

It is possible for the person’s approach to the proceedings to constitute behaviour that is considered unreasonable. For example if in a private family law dispute that is likely to require significant resources, the person indicates that they will not entertain any settlement and they insist on bringing the matter to a conclusion through the courts, this could constitute unreasonable behaviour particularly if the other party is willing to negotiate.

In both types of circumstances the general approach should be that the solicitor writes to the client warning them that their behaviour may lead to the termination of legal services. The person is therefore afforded the opportunity to desist from the behaviour. There may be circumstances in which the behaviour is such that it is appropriate to move to the termination process without warning.

When a solicitor makes an application to terminate the legal aid certificate the solicitor should in general write to the person informing them that they have made the application. Again there may be circumstances where it is not appropriate to do so e.g, where the person is posing a physical threat.