Background on sanction for counsel

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

Before accepting instructions to act in a case

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

  • Do you have sufficient resources to undertake the preparation and presentation of the case?
  • Is there 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, and hold 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 normally pass such cases 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 interests, we will not regard this as a good reason for sanctioning the instruction of counsel.

The Children’s Legal Assistance (Scotland) Regulations 2013

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.

Representation by counsel at a children’s hearing

We have the authority to sanction the employment of counsel to represent your client at a children’s hearing or pre-hearing panel but it is extremely unlikely that such sanction would be granted. This is due to the fact children’s hearings and pre-hearing panels are non-adversarial and they do not aim to establish or re-examine disputed facts.

However, any sanction application received either under children’s legal aid or assistance by way of representation will be considered on its own facts and circumstances

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