General guidance on approval for counsel

The Petition of Matthew McAllister [2010] CSOH 112 set down a very wide test to be satisfied before we can grant approval for the employment of counsel.

This is the leading case in this area and identifies the correct test that we must apply when considering approval of counsel.

It was stated in this case:

“It seems to me tolerably clear from the correspondence that SLAB considered the question of whether or not the case was beyond the capabilities or competence of a solicitor in deciding whether a grant of sanction would be appropriate. That was the wrong test. They were required rather to consider whether or not it was appropriate in all the circumstances to sanction counsel.”

This case also sets out the degree of discretion available to us when determining approval for counsel:

“It seemed to me clear that the power given to SLAB […] was to grant legal aid consisting of representation by a qualified lawyer, including sanction for counsel where it was appropriate so to do. I accept that the clause [of the 1986 Act[1]] does give a definition of legal aid. It seems to me that it also sets a test, in very wide terms, which has to be satisfied in order that SLAB gives sanction for counsel.”

The court made it clear that:

• we have a wide discretion to exercise in making our decision
• the weight that we place on various circumstances is for us to decide
• there is no “magic” in using the word appropriate.

In deciding to accept instructions to act in a case, you should at the outset and throughout the progress of the case consider:

• if you have sufficient resources to undertake the preparation and presentation of the case
• if there is a conflict of interest between your client or prospective client and you, your firm or an existing client
• if the firm you currently act for, or if the firm previously acted for,  holds relevant confidential information about another party or witness in this case
• if a member of the firm may be called as a witness in the case (unless the evidence will be purely formal).

The instruction of counsel does not resolve any conflicts. Where there is a conflict you should pass the case to another firm or solicitor not subject to such a restriction or constraint.

If you or your firm accept instructions or continue to act in a case where you consider there may be a conflict of interest, we will not regard this as an appropriate reason for approving the instruction of counsel.

You must get our prior approval for employment of counsel, whether it is junior, two junior, senior or senior with junior counsel except for one junior counsel in the Court of Session.

In all other situations, including appeals to the Sheriff Appeal Court, you must get our approval for the use of counsel.

Appeals to the Sheriff Appeal Court are considered to be distinct proceedings in terms of Regulation 6 of the 2013 Regulations.  Therefore, even if we have granted approval for the employment of counsel in the proceedings before the sheriff that you are now appealing, you must obtain our prior approval for the use of counsel in these appeal proceedings before the Sheriff Appeal Court.