5. Regulations 6 to 12 apply only where cost protection applies.
6. Where in any proceedings a client is required to give security for costs, the amount of that security shall not exceed the amount (if any) which is reasonable having regard to all the circumstances, including the client’s financial resources and their conduct in relation to the dispute to which the proceedings relate.
7.—(1) The value of the client’s interest in the main or only dwelling in which they reside shall not be taken into account in having regard to the client’s resources for the purposes of Article 18(1) of the Order.
(2) Where, but only to the extent that, the court considers that the circumstances are exceptional, having regard in particular to the quantity or value of the items concerned, the court may take into account the value of the client’s clothes and household furniture, or the tools and implements of the client’s trade, in having regard to the client’s resources for the purposes of Article 18(1) of the Order.
(3) Subject to paragraph (4), in having regard to the resources of a party for the purposes of Article 18(1) of the Order, the resources of the party’s partner shall be treated as that party’s resources.
(4) The resources of a party’s partner shall not be treated as that party’s resources if the partner has a contrary interest in the dispute in respect of which the funded services are provided.
(5) Where a party is acting in a representative, fiduciary or official capacity, the court shall not take the personal resources of the party into account for the purposes of Article 18(1) of the Order, but shall have regard to the value of any property or estate, or the amount of any fund out of which that party is entitled to be indemnified, and may also have regard to the resources of the persons, if any, including that party where appropriate, who are beneficially interested in that property, estate or fund.
(6) For the purposes of Article 18(1) of the Order, where a party is acting as a next friend or guardian ad litem to a client who is a child or a patient, the court shall not take the personal resources of the next friend or guardian ad litem into account in assessing the resources of the client.
8.—(1) An unassisted party to proceedings in which another party is a client may make an affidavit of resources, and file it with the court.
(2) An unassisted party making and filing an affidavit of resources under paragraph (1) shall serve a copy of it on the client and, where the unassisted party intends to apply for an Article 19 costs order, on the Department.
(3) Where a copy of an affidavit of resources is to be served under paragraph (2)—
(a)it shall be served not less than fourteen days before the date fixed for the hearing at which an Article 18 costs order and, where applicable, an Article 19 costs order may be made; and
(b)the client shall also make an affidavit of resources, file it with the court and serve a copy on the unassisted party and, where applicable, on the Department not less than seven days before the date fixed for hearing.
9.—(1) An application for an Article 18 costs order or an Article 19 costs order may be made at any time and in any manner in which an application for an order for costs might be made in respect of the same proceedings if none of the parties were receiving funded services.
(2) Subject to the following paragraphs, the court may adopt such procedures as it sees fit and may direct that the parties submit such documents as may be required for determining the application.
(3) Where an application is made under this regulation, the court may, in its discretion—
(a)adjourn the hearing of the application;
(b)in special circumstances, refer the application under paragraph (4) for inquiry and report; or
(c)dismiss or grant the application forthwith.
(4) Any reference under paragraph (3)(b) shall be made to a district judge where the application is in respect of proceedings in the county court, and otherwise it shall be made to the taxing master.
(5) Where a reference is made under paragraph (3)(b), the district judge or taxing master, as applicable, shall have all the powers of the court for that purpose.
(6) The amount of costs to be determined under this regulation may include the costs incurred in relation to an application made under this regulation.
10.—(1) Subject to Article 19(5) of the Order, the following paragraphs of this regulation and to regulation 11, any determination made under regulation 9 shall be final.
(2) Where the client, the unassisted party or (where an application is made for an Article 19 costs order) the Department is dissatisfied with a report made pursuant to regulation 9(5), they may apply to the district judge or the taxing master, as applicable, for a review of the report within 14 days of receiving a copy of the report.
(3) The party applying for a review under paragraph (2) shall at the same time give notice to each of the other parties, setting out the grounds of dissatisfaction.
11.—(1) The following paragraphs of this regulation apply where the court makes an Article 18 costs order.
(2) Where the amount (if any) which the client is required to pay under the Article 18 costs order, together with the amount which the Department is required to pay under any Article 19 costs order, is less than the full costs, the unassisted party may, on the grounds set out in paragraph (3), apply to the court for an order varying the amount which the client is required to pay under the Article 18 costs order.
(3) The grounds referred to in paragraph (2) are that—
(a)there has been a significant change in the client’s circumstances since the date of the order; or
(b)material additional information as to the client’s financial resources is available, and that information could not with reasonable diligence have been obtained by the unassisted party before the application for an Article 18 costs order was made.
(4) Any application under paragraph (2) shall be made by the unassisted party within six years from the date on which the Article 18 costs order is first made.
(5) The amount of costs to be determined under this regulation may include the costs incurred in relation to an application made under this regulation.
12.—(1) The Department may appear at—
(a)any hearing in relation to which notice has been given to the Department under regulation 8 or 9;
(b)any hearing in relation to an application for review under regulation 10(3); or
(c)the hearing of any appeal under Article 19 of the Order.
(2) The Department may, instead of appearing under paragraph (1), give evidence in the form of an affidavit to the court.
(3) The Department shall file with the court any affidavit under paragraph (2), and serve a copy on the client and the unassisted party, not less than seven days before the hearing to which it relates.