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:
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:
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:
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:
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.
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:
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.
After a grant, and prior approval needed
This page includes information on arrangements for the employment of counsel under civil legal aid. It includes information on: the tests applied in our assessment of requests for counsel (whether case-related, or linked to your circumstances); timing of requests; limited use of counsel for opinions etc.; and retrospective grants for the employment of counsel.
After a grant, and prior approval needed
This page includes information on the employment of expert witnesses in civil legal aid. The guidance includes information on when prior approval is required; the application procedure (including use of templates); how to distinguish an expert witness and the status of certain common types of witnesses; timing of applications; how we will assess experts’ costs; and cost limit information.