After a grant: prior approval and the execution of diligence

Application processes for approval to execute diligence: when is approval required?

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 Unit of the Treasury Department.  Do not submit an online sanction application.

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.

Modified application process for prior approval - diligence on certain alimentary orders

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.

Timing of approval requests: when will we consider retrospective approval for the execution of diligence?

We can approve any step in the execution of diligence retrospectively where necessary [regulation 22 (4) Civil Legal Aid (Scotland) Regulations 2002].  We may do this if we consider that we would have approved it had you applied on time and there was special reason why you did not apply for prior approval.

Forms of diligence for which approval is not available

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

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