Courts and Tribunals (Judiciary and Functions of Staff) Act 2018

32 U.K. After Part 6 insert—

“PART 6A U.K. Exercise of judicial functions by authorised persons

67A Meaning of “judicial office holder” and “relevant judicial function”

(1) In this Part—

• “judicial office holder” has the meaning given by section 109(4) of the Constitutional Reform Act 2005;

• “relevant judicial function” means—

  (a)

  a function of a court to which the general duty of the Lord Chancellor under section 1 of this Act applies;

  (b)

  a judicial function of a person holding an office that entitles the person to exercise functions of such a court;

  but does not include a function to which any of the following subsections applies.

(2) This subsection applies to any function so far as its exercise involves authorising a person's committal to prison.

(3) This subsection applies to any function so far as its exercise involves authorising a person's arrest, but it does not apply to the issue of a warrant (whether or not endorsed for bail) for a person's arrest in order to secure that the person attends court proceedings relating to an offence of which the person has been accused or convicted in a case in which no objection is made by or on behalf of the person to the issue of the warrant.

(4) This subsection applies to the function of making an order to recover possession of a building, or part of a building, which is occupied as a dwelling by—

(a) the person against whom the order is made, or

(b) the person's spouse, civil partner or dependent child aged under 18,

but it does not apply to the making of an order in a case in which no objection is made by or on behalf of the person against whom the order is made to the making of the order.

(5) This subsection applies to the function of granting an injunction under section 37 of the Senior Courts Act 1981.

(6) This subsection applies to the function of making an order under section 7 of the Civil Procedure Act 1997 (order for preserving evidence etc).

67B Authorisation to exercise relevant judicial functions

(1) Rules of court may provide for the exercise of relevant judicial functions by persons who—

(a) are appointed under section 2(1) of this Act or section 40(1) of the Tribunals, Courts and Enforcement Act 2007, and

(b) satisfy any requirements specified in the rules as to qualifications or experience.

(2) A person may exercise functions by virtue of subsection (1) only if authorised to do so by the Lord Chief Justice.

(3) Such a person is referred to in this Part as an “authorised person”.

(4) An authorisation under subsection (2)—

(a) may be subject to conditions, and

(b) may be varied or revoked by the Lord Chief Justice at any time.

(5) The Lord Chief Justice may nominate one or more of the following to exercise the Lord Chief Justice's functions under the preceding provisions of this section—

(a) a judicial office holder;

(b) a person appointed under section 2(1) of this Act or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.

(6) A person nominated under subsection (5)(b) to exercise functions of the Lord Chief Justice is not subject to the direction of any person other than—

(a) the Lord Chief Justice, or

(b) a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

(7) Nothing in this Part is to be taken to affect the generality of any enactment conferring powers to make rules of court.

67C Exercise of relevant judicial functions: reconsideration of decisions

(1) Before making rules of court that provide for the exercise of relevant judicial functions by authorised persons by virtue of section 67B(1), the authority with power to make the rules must take the following steps in relation to each of the functions in question.

(2) The authority must consider whether the rules should include a right for the parties to proceedings in which a decision is made by an authorised person exercising the function to have the decision reconsidered by a judicial office holder.

(3) If the authority considers that the rules should include such a right, it must include provision to that effect when it makes the rules.

(4) If the authority does not consider that the rules should include such a right, it must inform the Lord Chancellor of—

(a) its decision, and

(b) its reasons for reaching that decision.

67D Directions and independence: authorised persons

(1) The Lord Chief Justice may give directions to an authorised person.

(2) Apart from such directions, an authorised person exercising a relevant judicial function by virtue of section 67B(1) is not subject to the direction of the Lord Chancellor or any other person when exercising the function.

(3) The Lord Chief Justice may nominate one or more of the following to exercise the Lord Chief Justice's functions under subsection (1)—

(a) a judicial office holder;

(b) a person appointed under section 2(1) of this Act or section 40(1) of the Tribunals, Courts and Enforcement Act 2007.

(4) A person nominated under subsection (3)(b) to exercise functions of the Lord Chief Justice is not subject to the direction of any person other than—

(a) the Lord Chief Justice, or

(b) a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

67E Protection of authorised persons

(1) No action lies against an authorised person in respect of what the person does or omits to do—

(a) in the execution of the person's duty as an authorised person exercising, by virtue of section 67B(1), a relevant judicial function, and

(b) in relation to a matter within the person's jurisdiction.

(2) An action lies against an authorised person in respect of what the person does or omits to do—

(a) in the purported execution of the person's duty as an authorised person exercising, by virtue of section 67B(1), a relevant judicial function, but

(b) in relation to a matter not within the person's jurisdiction,

if, but only if, it is proved that the person acted in bad faith.

(3) If an action is brought in circumstances in which subsection (1) or (2) provides that no action lies, the court in which the action is brought—

(a) may, on the application of the defendant, strike out the proceedings in the action, and

(b) if it does so, may if it thinks fit order the person bringing the action to pay costs.

67F Costs in legal proceedings: authorised persons

(1) A court may not order an authorised person to pay costs in any proceedings in respect of what the person does or omits to do in the execution (or purported execution) of the person's duty as an authorised person exercising, by virtue of section 67B(1), a relevant judicial function.

(2) But subsection (1) does not apply in relation to any proceedings in which an authorised person—

(a) is being tried for an offence or is appealing against a conviction, or

(b) is proved to have acted in bad faith in respect of the matters giving rise to the proceedings.

(3) A court which is prevented by subsection (1) from ordering an authorised person to pay costs in any proceedings may instead order the Lord Chancellor to make a payment in respect of the costs of a person in the proceedings.

(4) The Lord Chancellor may, after consulting the Lord Chief Justice, make regulations specifying—

(a) circumstances in which a court must or must not exercise the power conferred on it by subsection (3), and

(b) how the amount of any payment ordered under subsection (3) is to be determined.

(5) The Lord Chief Justice may nominate a judicial office holder to exercise the Lord Chief Justice's functions under this section.

67G Indemnification of authorised persons

(1) “Indemnifiable amounts”, in relation to an authorised person, means—

(a) costs which the person reasonably incurs in or in connection with proceedings in respect of anything done or omitted to be done in the exercise (or purported exercise) of the person's duty as an authorised person,

(b) costs which the person reasonably incurs in taking steps to dispute a claim which might be made in such proceedings,

(c) damages awarded against the person or costs ordered to be paid by the person in such proceedings, or

(d) sums payable by the person in connection with a reasonable settlement of such proceedings or such a claim.

(2) Indemnifiable amounts relate to criminal matters if the duty mentioned in subsection (1)(a) relates to criminal matters.

(3) The Lord Chancellor must indemnify an authorised person in respect of—

(a) indemnifiable amounts which relate to criminal matters, unless it is proved, in respect of the matters giving rise to the proceedings or claim, that the person acted in bad faith, and

(b) other indemnifiable amounts if, in respect of the matters giving rise to the proceedings or claim, the person acted reasonably and in good faith.

(4) The Lord Chancellor may indemnify an authorised person in respect of other indemnifiable amounts unless it is proved, in respect of the matters giving rise to the proceedings or claim, that the person acted in bad faith.

(5) Any question whether, or to what extent, an authorised person is to be indemnified under this section is to be determined by the Lord Chancellor.

(6) The Lord Chancellor may, if the person claiming to be indemnified so requests, make a determination for the purposes of this section with respect to—

(a) costs such as are mentioned in subsection (1)(a) or (b), or

(b) sums such as are mentioned in subsection (1)(d),

before the costs are incurred or the settlement in connection with which the sums are payable is made.

(7) But a determination under subsection (6) before costs are incurred—

(a) is subject to such limitations (if any) as the Lord Chancellor thinks proper and to the subsequent determination of the costs reasonably incurred, and

(b) does not affect any other determination which may fall to be made in connection with the proceedings or claim in question.”

Commencement Information

I1 Sch. para. 32 in force at 10.1.2020 for specified purposes by S.I. 2020/24, reg. 2(b)(iii)

I2 Sch. para. 32 in force at 6.4.2020 in so far as not already in force by S.I. 2020/24, reg. 3(b)