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Practice Direction No. 1 of 2014 DIFC Courts’ Pro Bono Programme Amendment

Practice Direction No. 1 of 2014 DIFC Courts’ Pro Bono Programme Amendment

January 15, 2014

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IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

PRACTICE DIRECTION NO. 1 OF 2014

DIFC Courts’ Pro Bono Programme Amendment

Citation

This Practice Direction will come into effect on the date of signature. It may be cited as Practice Direction 1 of 2014 — DIFC Courts’ Pro Bono Programme Amendment — and may be abbreviated to PD 1/2014.

This Practice Direction amends Practice Direction No. 5 of 2013 on the DIFC Courts’ Pro Bono Programme. The Guidelines which follow shall replace those found in the Practice Direction 3 of 2009.

The amended clause of the guideline is number 15 as reflected in the guidelines below.

Chief Justice Michael Hwang

Dated: 15th January 2014


DIFC Courts’ Pro Bono Programme Guidelines

Purpose

The introduction of the DIFC Courts’ Pro Bono Programme (the “Programme”) derived from a need in the community for pro bono legal representation. The DIFC Courts’ aim is to facilitate representation of individuals that are in need of such, but who cannot afford to retain lawyers. The DIFC Courts have a mission to provide accessibility to justice and to ensure that all parties are on an equal footing in proceedings before the Courts. The services offered in the Programme will be delivered to eligible individuals (“pro bono litigants”) who approach the Registry of the DIFC Courts requesting assistance. To ensure consistency of pro bono representation, information and procedures, the DIFC Courts provide the following guidelines in relation to the Programme.

In addition, to enable greater accessibility the Programme introduced Pro Bono clinics which run on a regular basis providing brief legal advice about matters relating to the DIFC.

Guidelines

1. The following may participate in the Programme (as a “volunteer practitioner”):

a. Any person or firm registered in the Register of Practitioners of the DIFC Courts; and
b. Any person or firm who or which does not qualify under (a.) above but who or which satisfies the Pro Bono Programme Leader that he/she/it is legally qualified to give pro bono advice.

 

2. If a pro bono litigant directly contacts a volunteer practitioner, the volunteer practitioner should ask the individual to contact the Pro Bono Programme Leader at the DIFC Courts directly for assistance on the DIFC Courts’ Pro Bono email: Pro.bono@difccourts.ae.

 

3. The Pro Bono Programme Leader will be chosen by the Chief Justice of the DIFC Courts. The Programme Leader will be responsible for all aspects of the operation and administration of the Programme.

 

4. Each individual practitioner wishing to take part in the Pro Bono Programme should complete the volunteer form and submit it to the Programme Leader. [The Individual Volunteer form can be found at: Individual Volunteer Form] The completed form should be sent by email to the Programme Leader at Pro.bono@difccourts.ae.

 

5. Any firm wishing to register shall include in its volunteer form, among other things, the details of a person in the firm with whom the DIFC Courts can liaise for pro bono matters, including the referral of pro bono litigants. [The Law Firm Volunteer form can be found at: Volunteer Law Firm Form] The completed form should be sent by email to the Programme Leader at Pro.bono@difccourts.ae.

 

6. There are several legal matters that fall outside the purview of our pro bono programme. The legal advice that our volunteer practitioners provide will be focused on issues that do or might fall within the jurisdiction of the DIFC Courts. We do not provide legal assistance on matters which are criminal in nature or which are governed by personal laws, such as family or inheritance laws, or those originating from organisations or transactions outside our jurisdiction.

 

7. A pro bono litigant should complete a pro bono litigant intake form. [The Pro bono litigant intake form can be found at: Pro Bono Litigant Intake Form] The completed form should be sent by email to the Programme Leader at Pro.bono@difccourts.ae. The intake form requires the pro bono litigant to briefly describe the nature of their claim, their financial position and the type of remedy sought. In order for a pro bono litigant to be eligible for the Programme, and to continue to retain free legal services, the pro bono litigant must provide evidence to the Programme Leader that he/she cannot afford a lawyer. It is at the discretion of the Programme Leader as to the evidence required, and based on that evidence; the Programme Leader will decide whether the litigant is eligible for the Programme. It must be recognised that the decision of the Programme Leader is final.

 

8. A pro bono litigant must notify the volunteer practitioner and the Programme Leader if, at any time during the course of pro bono representation, his or her financial position changes such that he/she is, or will be able, to retain a lawyer. Failure to notify the volunteer practitioner and Programme Leader of such a change in the pro bono litigant’s financial circumstances may result in him or her being held liable for the legal costs and any fees waived under this Programme.

 

9. Once an applicant has been admitted into the Programme, he/she will be added to the Pro Bono Register, and a volunteer practitioner will be assigned. The Programme Leader will endeavour to allocate no more than one pro bono litigant to each volunteer practitioner at any given time. However, there may be instances in which that number is exceeded.

 

10. The successful applicant will be entitled to free legal services, but this is only in relation to his/her own legal costs. Save as provided for in paragraph 11 below, the pro bono litigant will most likely have to cover the legal costs of the other party or parties in the event that the pro bono litigant loses the case.

 

11. There can be instances in which a pro bono litigant may be entitled to a cost free trial, where he/she will not be obligated to meet the legal costs of the opposing party or parties even if the pro bono litigant loses his or her case. The pro bono litigant will only be entitled to this once an application has been approved by the Pro Bono Panel (the ‘Panel’) of the DIFC Courts.

Not all applications for a costs free trial will be forwarded for the consideration of the Panel. Only certain qualifying applications will be put forward to the Panel for its consideration. The legal representative of the pro bono litigant (the law firm that agreed to pursue the pro bono litigant’s case) must support a pro bono applicant’s application for a costs free trial, and must certify that in their opinion there is a reasonable prospect of the pro bono applicant’s case succeeding. Similarly, the opposing party’s or parties’ legal representative will be given the opportunity to respond to the application for a costs free trial and may provide its submissions about why the pro bono litigant should not be permitted a costs free trial. A pro bono litigant may only be granted a costs free trial once the application has been forwarded to the Panel by the Programme Leader and the Panel has subsequently determined that the applicant meets the threshold of financial inability, case merit and such other criteria as the Panel may determine is relevant from time to time. The Panel has absolute discretion as to whether an applicant meets the threshold for a costs free trial. A brief description of the guidelines under which the Panel operates is attached.

 

12. A pro bono litigant can at any time apply to the Programme Leader to have the court fees suspended until the end of the case. The Programme Leader has absolute discretion in determining whether court fees are to be suspended and to what extent.

 

13. If the pro bono litigant’s action is successful and the litigant is awarded costs, all legal costs and court fees are payable to the DIFC Courts’ Pro Bono Fund. Assessment shall be undertaken on a summary basis by a Judge or the Registrar. Parties should consider Practice Direction no. 5 of 2011 — Cost Order in Favour of Party represented Pro Bono.

 

14. When a volunteer practitioner takes on a pro bono engagement, both the volunteer practitioner and the pro bono litigant should sign a letter of engagement which outlines the scope of the pro bono engagement. A sample letter for law firms is attached and for other examples (eg. such as in-house counsel, non-practising lawyers etc.) please contact the Courts’ Pro Bono team at Pro.bono@difccourts.ae. One copy will be retained by the volunteer practitioner; one copy will be provided to the pro bono litigant; and a third copy will be provided to the Programme Leader.

 

15. Each pro bono engagement must be clearly defined in the pro bono letter of engagement in respect to the type of service and scope of work to be provided. Pro bono engagements can range from basic advice to full case management and trial, as well as representation in proceedings. The pro bono engagement only encompasses the Small Claims Tribunal, in accordance with part 53 of the Rules of the DIFC Courts, and the Court of First Instance. If the pro bono litigant and the volunteer practitioner agree to continue the representation to cover an appeal or additional claim, a new pro bono letter of engagement will need to be submitted to the Programme Leader. In the absence of such agreement, the pro bono litigant may apply to the Programme Leader requesting a referral to another volunteer practitioner.

 

16. If a pro bono litigant is not satisfied with the type of service and/or scope of work offered by the volunteer practitioner or for any other valid reason, he/she may approach the Programme Leader to request a change in representation. The Programme Leader has the absolute discretion to determine whether to assign the pro bono litigant an alternative volunteer practitioner.

 

17. Volunteer practitioners which are firms shall ensure that pro bono litigants and their matters are administered and handled to the same high standards as for non-pro bono clients. All volunteer practitioners who represent pro bono clients in proceedings before the DIFC Courts must act in accordance with the Code of Professional Conduct for Legal Practitioners issued by the DIFC Courts.

 

18. In the interests of promoting accessibility to representation for pro bono litigants, the DIFC Courts reserve the right to waive the requirement of Part II registration in order for a volunteer practitioner (and where the volunteer practitioner is a firm, for lawyers of that firm) to appear in Court in relation to pro bono cases only. Upon application to, and acceptance by, the Programme Leader a volunteer practitioner (and where the volunteer practitioner is a firm, a lawyer of that firm) may represent the pro bono litigant in Court.

 

19. The Programme Leader will maintain a confidential spread sheet detailing the number of occasions on which a volunteer practitioner has agreed to provide assistance to a pro bono litigant. From time to time, the spread sheet will be reviewed by the Programme Leader to determine which volunteer practitioner should remain on the Pro Bono Register.

[Note: This is a sample form only. Use of this letter will help to establish clear expectations and avoid misunderstandings between the volunteer practitioner and the pro bono litigant.]

DIFC COURTS’ PRO BONO PROGRAMME
[SAMPLE] LETTER OF ENGAGEMENT FOR FIRMS

[Date]

[Pro Bono Litigant Name & Address]

Re: Scope of representation

Dear [Pro Bono Litigant]:

This letter will confirm the terms of our representation. Our work will begin upon receipt of a signed copy of this letter.

[Name of volunteer practitioner] will provide legal services to [Pro bono litigant name], and the scope of services we will render and other aspects of the proposed representation are mutually agreed to be as follows: [Name of volunteer practitioner] will provide legal services to [Pro bono litigant name], and the scope of services we will render and other aspects of the proposed representation are mutually agreed to be as follows:

Services to be Provided:

[Name of volunteer practitioner] has been engaged to provide the following services: [list services to be provided].

Excluded Services

[Name of volunteer practitioner] has not been engaged to provide the following services: [list services that are outside the scope of the representation].

Expenses:

We may incur various expenses in providing services. We will inform you before incurring expenses for your approval. You agree to pay all such expenses and to reimburse us for all out-of-pocket expenses that we pay on your behalf provided you had prior notification and gave your approval to the disbursement. Whenever possible, we will forward bills for any expenses incurred on your behalf directly to you and you agree to make prompt payment directly to the originator of these bills. Expenses that may be incurred include, but are not limited to, photocopying, faxing, courier fees, court fees, expert’s fees and mailing disbursements.

Client Cooperation

Our expectations of you are [list any expectations concerning maintaining accurate address and contact information, responses to requests for information, communication, etc.].

Documentation

The DIFC Courts will keep copies of all of your case related documents and correspondence once a claim is filed with the Court. We will keep copies of this information as well. If you wish to have your own copies of these documents you may request copies from the Registry of the DIFC Courts and pay the appropriate copying charges. Once we have completed the legal work necessary to conclude this matter, we will close our file and return any original documents to you.

Your Right to Terminate Representation

You may terminate this representation at any time with or without cause by notifying us and the DIFC Courts’ Pro Bono Programme Leader in writing of your desire to do so. Upon receipt of the notice to terminate representation, we will stop all legal work on your behalf immediately. You will be responsible for paying all expenses incurred on your behalf in this matter before the date of written notice of termination was received.

Our Right to Terminate Representation

We may terminate our representation (to the extent permitted by the Code of Conduct of the DIFC Courts and the Rules of the DIFC Courts) at any time if you breach any material term of this agreement or fail to cooperate or follow our advice on a material matter, if a conflict of interest develops or is discovered, or if there exists at any time any facts or circumstance that would, in our opinion, render our continuing representation unlawful, unethical, or otherwise inappropriate. If we elect to terminate our representation, you will take all steps reasonably necessary and will cooperate as reasonably required to free us of any further obligation to perform legal services, including the execution of any documents necessary to complete our withdrawal from representation. In such case, you agree to pay for all expenses incurred before the termination of our representation in accordance with the provision of this agreement.

Eligibility Requirements

In order to be eligible for the DIFC Courts’ Pro Bono Programme and to continue to retain our legal services, you have certified to the DIFC Courts that you cannot afford a lawyer, along with providing relevant evidence. You must notify us and the Pro Bono Programme Leader if at any time during this representation your financial position changes such that you would be able to retain a lawyer to represent you.

If any of the terms stated in this letter are not consistent with your understanding of our agreement, please contact us before signing the agreement. Otherwise, please sign the agreement in the space provided below and return it to [email address and/or postal address information]. Also, please provide a signed copy to the DIFC Courts’ Pro Bono Programme Leader.

If you have questions, please feel free to call on [telephone number].

Yours sincerely,

[Name of volunteer practitioner]

I have read and consent to the terms contained in this letter.

____________
Signature
____________
Printed Name
____________
Date

DIFC Courts Pro Bono Panel Guidelines

1. The DIFC Courts’ pro bono panel will comprise of seven members and will include:

a. The Pro Bono Programme Leader; and
b. Six lawyers who are registered with the DIFC Courts’ Register of Legal Practitioners.

 

2. The tenure of membership will be for a period of one year and there will be a review after that period. The review will be done by the Pro Bono Programme Leader. The Pro Bono Programme Leader will assess, among other things, the contribution of the panel members and can either:

a. Choose to continue with the existing panel members for another year; or
b. Choose a new panel member or members.

 

3. The panel will be required to process an application within 14 working days of the application being submitted to it.

 

4. Meetings:

a. The venue for each meeting shall be determined by the Pro Bono Programme Leader and panel members shall be considered present at the meeting if they attend in person or by telephone.
b. Not less than three panel members (including the Pro Bono Programme Leader) must be present at a meeting for the meeting to be quorate and at any meeting the decision of a majority of the panel members present at that meeting shall bind the panel. The Pro Bono Programme Leader shall have a casting vote.
c. Members shall not be permitted to appoint a delegate or proxy to attend at or vote at meetings.

 

5. The panel will have to assess two different facets of each application:

a. The financial inability of the pro bono applicant: The panel will have to assess whether the pro bono litigant is unable to meet his/her legal costs and that of his/her opponents, in the event that he/she loses the claim. This assessment will be comprehensive and will include thorough examination of all the documents that deal with the financial position of the pro bono litigant.
b. The merits of the case at hand: Aside from the financial inability of the pro bono litigant, the panel will also have to determine whether the case at hand has a reasonable chance of succeeding if it goes to trial.
The pro bono litigant can only have a costs free trial once both conditions have been met and when the same has been confirmed by the panel.

 

6. When determining whether a costs free trial should be granted, the Panel will give both the pro bono litigant’s lawyers and the opposing party’s or parties’ lawyers an opportunity to present their reasons why a costs free trial should or should not be awarded. The panel, after permitting both sides to present the above arguments, will make a decision as to whether or not the pro bono litigant will be granted a costs free trial.

 

7. Upon confirmation that a pro bono litigant is granted a costs free trial, notice is to be served on the other parties to the case that they cannot recover legal costs from the pro bono litigant, even if the pro bono litigant loses the case.