After a grant: prior approval and the execution of diligence

You must get our prior approval for any step in the execution of diligence. That is diligence in execution of a final or interim decree (rather than diligence on the dependence of proceedings).  You will normally need this approval in the context of proceedings.

Send your application to the Principal Sums Team of the Civil Finance Department.  You can submit your request by email, letter or online notification and you should include the cost of the work to be undertaken and the likelihood of success..

If approved, you should include diligence costs in your account under the legal aid grant for the proceedings or, if you have already submitted that account, send a supplementary account for the diligence alone.  There is no time limit for seeking or granting approval for diligence.

You can ask for prior approval of work to enforce a decree for payment of sums due to your client. You must seek prior approval to serve a charge first, before any enforcement work can be undertaken.

Examples of the work you can do after a charge has been served are:

• bank arrestments
• earnings arrestments
• arrestment on the dependence
• inhibitions
• inhibitions on the dependence
• attachment orders.

For those forms of diligence where our prior approval is required, the test we apply is one of reasonableness.

Our policy is that we will grant requests to undertake diligence where the prospects of recovery are positive, and/or the amount potentially recovered by undertaking diligence appears likely to exceed the cost of taking steps.

Where you specify multiple specific steps you want to undertake and the associated costs, we will consider each specific step and decide whether they meet the reasonable test.

For us to consider a request for prior approval, you must tell us:

• that you have already requested, or attempted to request, payment from the opponent which has been unsuccessful and the next step will be enforcement proceedings. A charge will then need to be served, which needs our prior approval
• the work you want to undertake, the cost of the work and the likelihood of success. The cost for each step in diligence is set out within the Act of Sederunt. All costs are standard and the same fee must be applied regardless of who carries out the work.

You should send us a copy of the Sheriff Officer’s report once the charge has been served. The report, if successful, should give an indication on the effectiveness of enforcement action should it be granted.

Make sure you have considered the current case cost limit and applied for an increase in funding, by way of an Amend/Extension application, if required. You need to ensure you have sufficient available expenditure, both to instruct the work and undertake further work on the case.

Where you want to take enforcement action in England, we can only consider granting approval to cover the cost of registering the decree in the appropriate court and not any enforcement work. We will consider the cost and likelihood of success.

If the cost of the work and the likelihood of success are reasonable, we will grant prior approval in the following circumstances:

• Bank Arrestment – the debtor is believed to have capital in their account or we know the date the debtor’s salary is likely to be paid into their account
• Arrestment on the Dependence – there is a crave for capital and it is believed or known that the debtor has money which may be disposed of prior to settlement
• Earnings Arrestment – the debtor is known to be working and the name and address of the employer is known
• Inhibitions – the debtor is known to own property in Scotland
• Inhibitions on the Dependence – the debtor is known to own property in Scotland.

Some forms of diligence can be carried out within a specified time limit, on certain alimentary orders without our prior approval [regulation 22(2) Civil Legal Aid (Scotland) Regulations 2002] for example:

• a decree following on an action for aliment within the meaning of the Family Law (Scotland) Act 1985
• an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976, or for the making of a periodical allowance under section 8 of the Family Law (Scotland) Act 1985
• any order for the periodical payment of sums for the maintenance of any person which, by virtue of the Maintenance Orders Act 1950, the Maintenance Orders (Reciprocal Enforcement) Act 1972 or the Civil Jurisdiction and Judgments Act 1982, may be enforced in Scotland.

The absence of any need for prior approval also applies to any settlement arrived at to prevent or bring to an end proceedings in which a decree or order such as above may be granted.

Arrestment

The type of diligence that may be carried out in execution of such a decree, without our prior approval is restricted to arrestment.  However, where the arrestment is an earnings arrestment the necessary prior service of a charge for payment may be carried out without our approval [regulation 22 of the Civil Legal Aid (Scotland) Regulations 2002].

This applies only where the arrestment or charge is carried out within 12 months of the date of the alimentary decree, order or settlement specified above.  If you wish to act outwith that period you must get our prior approval.

There is no limit on the number of arrestments that can be carried out within the 12 month period, but your account will be subject to the usual taxation test of reasonableness.

We can approve any step in the execution of diligence retrospectively where necessary [regulation 22 (4) Civil Legal Aid (Scotland) Regulations 2002].

For retrospective requests to undertake steps in executing diligence, the first part of the test (set out in the Regulations) is whether approval would have been granted had you sought timeously. Our policy is to apply the same test to the request as if it had been received prospectively.

The second part of the test is whether there was special reason why prior approval was not applied for. As a matter of policy, we will consider the outcome of the steps taken:

• if you make a retrospective request for approval and the action has been successful (and the funds recovered will be sufficient to cover the cost of taking the steps), our policy is that if the reason provided for late submission is sufficient to manage any risk we seek to manage at that stage, this will be accepted as a special reason
• where you send a request for retrospective approval, but have not made a successful recovery, our policy on ‘special reason’ is that where it is stateable that:
  • you were forced to take steps quickly in order to be able to attempt recovery at all
  • you were prevented from making a prospective application for prior approval by circumstances which were beyond your control and these circumstances were ones which could not have been reasonably foreseen; or
  • the circumstances were within your control, and ought to have been foreseen, but the oversight was nonetheless justifiable given the particular or unusual circumstances in which the expense was incurred

we will generally accept this as a special reason for late submission of a request.

If you need to raise an action of furthcoming, or propose to attempt enforcement by civil imprisonment or sequestration, you must make a separate application for civil legal aid.