The use of advice and assistance in proceedings where civil legal aid has been refused

Advice and assistance should not be viewed as an alternative to civil legal aid or as a source of funding for proceedings where we have refused civil legal aid.  However, it can still be used for the limited purpose of negotiating a settlement.  If civil legal aid is available for the proceedings, you should apply for it at the appropriate stage so we can apply the tests of probable cause, reasonableness and financial eligibility.

Availability of civil advice and assistance where civil legal aid is not available

In proceedings where civil legal aid is not available, you may still give advice and assistance to help your client to frame the initial documentation.  You can include a time charge in your account – this will often be subsumed within a meeting with your client.  Charges for time spent actually framing or lodging such documents cannot be included in the account.  In general, your client can and should ask for help on procedural matters from the clerk of the court or tribunal, who may also be able to provide more detailed advice in certain types of cases.

However, we may be able to make funding available for some continuing advice and assistance, if we are satisfied that it is reasonable.  This may include situations where your client:

  • Seeks advice on the effect of answers, defences or other documents or productions lodged by an opponent – including an assessment of the prospects of success in the light of the up-to-date information
  • Asks for help in adjusting or amending a written case during proceedings
  • Seeks advice on what productions should be lodged
  • Asks, before a hearing, for advice on the line of evidence to be followed and the witnesses to be called, including advice on how to conduct a hearing or lead evidence and examine or cross-examine witnesses

Any advice and assistance given to help your client take steps in relation to proceedings will not include costs incurred in the citation or attendance in court of witnesses or any sums payable by way of caution.

Unless we have approved the provision of ABWOR, the advice set out above also applies to employment tribunals.  However, we do not consider negotiations with the help of the Advisory, Conciliation and Arbitration Service (ACAS) as a step in such employment tribunals. You may represent your client at such a meeting.

You may appear in a forum, which does not fall within the definition of a court, tribunal or statutory inquiry. An example might be representing your client’s interests at an informal meeting with social workers to discuss the welfare of children.

A&A and whether the case ‘relates to a civil matter’: fee implications

You are required to decide whether the advice and assistance relates to a civil matter in accordance with guidance we issue.  This has a bearing on the fees chargeable and the initial level of authorised expenditure available to you, as a higher limit applies to civil matters.

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