New Procedure for Applications for Payment of Expenses from the Fund
There is a new procedure for applications for payment of expenses out of the Scottish Legal Aid Fund in civil cases in terms of Section 19 of the 1986 Act.
The new procedure will apply to applications made on or after 11 December 2017. Applications made by motion before that date will continue under the existing procedure.
The new procedure is brought about by changes to The Act of Sederunt (Civil Legal Aid Rules) 1987 which come into force on 13th November 2017, by way of The Act of Sederunt (Civil Legal Aid Rules Amendment) 2017: http://www.legislation.gov.uk/ssi/2017/332/made
Applications continue to be by motion in the cause, but the main change, designed to help ensure that the application can be determined at the court’s first consideration of the motion, is the introduction of mandatory pre-motion procedure which is intended to ensure that all information is collated for the court, and intimated to SLAB.
Under the new procedure a prescribed notice form requires to be completed and sent to SLAB with any supporting vouchers at least 28 days prior to any motion being enrolled or lodged. The notice, a version of which is available here, should include requested information about the parties involved in the action, the outcome of the proceedings, the details relating to expenses and, where necessary, address the issue of financial hardship to the unassisted person. The notice directs that supportive vouching be provided along with this form.
How SLAB will respond to the notice
In terms of the procedure a motion may be enrolled or lodged on expiry of the 28 day period following intimation to SLAB. Accordingly the 28 day period will allow consideration of the information and material. Although it is not formally part of the procedure, SLAB will provide a response to the applicant, normally within 7 days of the receipt of the intimation of the notice. It is intended that through such a response, and any subsequent correspondence during the 28 day period, SLAB can provide details of its position in relation to the application, and separately, provide assistance or guidance on the information or vouching provided that will identify any further requirements, or otherwise assist the application and in due course the court. If there are apparent issues in relation to the competency of the application, this will be intimated by SLAB in its response. The 28 day period will allow time for further attention to any matters susceptible to further consideration and discussion. It is anticipated that by the expiry of the 28 day period, both the applicant and SLAB will be sighted on whether there are any remaining issues with the application or that it can simply be left to the discretion of the court upon consideration of the motion, without any representations from SLAB.
After the 28 day period has passed, and unless there is ongoing correspondence between the applicant and SLAB which could usefully be advanced prior to lodging the motion, the motion, a copy of the prescribed form as intimated to SLAB and any vouching and related documents will require to be lodged at the relevant court. As indicated above, the notice form is designed to help ensure that the motion can be determined when it first calls; the more information detailed in and provided with the notice, and in turn lodged with the motion, the more likely the matter will be after first consideration. It is a matter for the applicant, but it may assist the court if SLAB’s response to the intimation of the prescribed form is lodged with the other material. Any motion must be intimated to SLAB, and SLAB is entitled to make representations at the motions hearing. Although SLAB will usually have advised the solicitor acting for the applicant of any concerns regarding the competency or sufficiency of information supporting the motion prior to it being lodged, upon intimation of the motion, SLAB will also flag any remaining concerns, as well as provide an indication of whether it intends to make representations.
The notice and supportive vouching can be intimated by email to SLAB at firstname.lastname@example.org or sent by post to Thistle House, 91 Haymarket Terrace, Edinburgh EH12 5HE.
Further information about the legal provisions relating to section 19 applications, the statutory procedure, and SLAB’s approach to applications are available in the civil handbook here.
If you have any queries, please contact Kieran Burke at email@example.com or on 0131 240 2153.