Appellate proceedings

Appellate proceedings are distinct from proceedings in the court below and need a fresh application for legal aid.  However, if the subject matter is an interim matter only the existing legal aid may be amended to cover the appeal.  You should submit an AMEND application with appropriate documentation so that we can consider extending the legal aid.

If your client holds a decree in the court below, we will be satisfied that they have probable cause to oppose the appeal by the other side. You should show that the decree gives a benefit to your client that is reasonable for public funds to support.

Where your client wishes to initiate the appeal either on an interim order or against final judgement, we need:

• A copy of the judgement appealed against
• A statement of the grounds of appeal
• Comments on the prospects of success and if counsel was instructed in the court below, their opinion.

Appeals against refusal of permission or against a restriction of permission to proceed with judicial review, do not need a fresh application for legal aid.   Where a grant of legal aid has been made, you should submit an AMEND application together with the supporting documentation.

You also need to submit an AMEND application where you have previously submitted an application for civil legal aid for the proceedings for judicial review, but we have not taken a decision on it at the time the need to appeal the decision arises.

Where there is no grant of legal aid or if a grant has not been extended to cover the contemplated appeal, special urgency cover is available for initiating the appeal. Any further work to be done under the special urgency provisions needs our prior approval.

We have special arrangements to expedite you client’s application for an appeal to the Supreme Court. Most applications are determined without the need for the case to be referred to one of SLAB’s Committees unless the application concerns issues of wider importance which merit this.

If your client is applying for leave to appeal from the Inner House of the Court of Session to the UK Supreme Court they will now either need:

• Leave to appeal from the Inner House
• Permission from the UK Supreme Court itself

If your client has a grant of legal aid for an appeal to the Inner House of the Court of Session and they want to ask for leave to appeal to the UK Supreme Court they are covered under the existing grant of legal aid. The grant does not need to be amended.

If leave is refused and your client has to apply to the UK Supreme Court for permission to appeal, you should apply for special urgency cover. You will need to get separate authorisation for any oral hearing fixed on the application for permission to appeal.  You should also include a note from senior counsel on the prospects of appeal. While you await the outcome, submit your application for civil legal aid and we will hold it pending the outcome of the permission hearing.

You should also include:

• Interlocutor appealed against
• Reclaiming print
• Such parts of the appendix as may be appropriate
• Opinions of the judges of the Inner House
• Details of the outcome of the permission hearing
• Any other relevant papers.

Your client should provide:

• A statement giving as much background information as possible and explaining how they are or will be affected by the decision.
• A statement from any representing solicitor present at original proceedings should be submitted to explain the grounds of appeal.
• A copy of any written reasons for the authority’s decision

An appeal from the Upper Tribunal is heard by the Inner House.  You can apply for civil legal aid for both this and an appeal to the Court of Session against a refusal by the Upper Tribunal to grant leave to appeal a decision taken by the First Tier Tribunal.

Your client should provide:

• Copy of the judgement to be appealed
• Copy of the original decision to be appealed
• Grounds of appeal;
• Your client’s statement;
• Detailed comments on the prospects of success including comments from counsel where they have previously been instructed.

Appeals to the Inner House may raise issues of wider public interest or involve high costs.  Where this applies you must address the issues with reference to our guidance.

An application for civil legal aid in relation to such a judicial review should additionally include:

• Details of the basis upon which the appeal meets the Eba (or second appeals)test and in what respect there are either or both an important point of principle and/or some other compelling reason as defined in the prevailing case law
• Detailed comments on the prospects of success including comments from counsel where they have previously been instructed

In certain circumstances the Court of Session may remit the judicial review to the Upper Tribunal.  Where this happens the grant of civil legal aid for the judicial review continues to cover the referral to the Tribunal.  No amendment to the grant of legal aid is necessary but you should notify us of this development.

Any application for legal aid for such an appeal should provide:

• Copy of the judgement to be appealed
• Copy of the original decision appealed
• Grounds of appeal
• Your client’s statement
• Detailed comments on the prospects of success including comments from counsel where they have previously been instructed.