If an application for an order for costs against the Lord Chancellor (to be paid out of the legal aid fund) is made, the criteria set out in Part 3 of the Regulations apply. The following conditions must be satisfied before an order against the Lord Chancellor may be made:
(i) a s26(1) order is made against the legally aided party in the proceedings and the amount (if any) which the legally aided party is required to pay is less than the amount of the full costs;
(ii) the proceedings must have been finally decided in favour of the non-legally aided party;
(iii) the non legally aided party makes a request for a hearing to determine the amount to be paid by the legally aided party within three months of the date on which the Section 26(1) costs order is made; or after the expiry of the time limit where there is good reason for the delay in the request being made;
(iv) in the case of costs incurred in a court at first instance and the proceedings were instituted by the legally aided party, the non-legally aided party is an individual, and the court is satisfied that the non-legally aided party will suffer financial hardship unless the order is made; and
(v) in any case the court is satisfied that it is just and equitable in the circumstances that provision for the costs shall be made out of public funds.
Where the non-legally aided party is acting in a representative, fiduciary or official capacity and is entitled to be indemnified in respect of costs from any property, estate or fund, the court must, for the purposes of determining whether the above conditions are satisfied, have regard to the value of the property, estate or fund and the resources of any person who has a beneficial interest in that property, estate or fund.
Where the application for funded services was made on or after December 2001 the three months’ time limit referred to above may be extended if there is a good reason for the delay.