Employment of counsel

The use of one junior counsel in a Court of Session case and the use of one senior and one junior counsel in proceedings in the UK Supreme Court (unless you do not intend to instruct Scottish counsel) is automatically available and no approval is needed. The use of counsel in any other situation needs approval. See the table below for quick reference.

If we grant approval for a proof or appeal or other hearing then, from that point on, counsel can take certain steps without the need for further approval to the conclusion of the proof or appeal or other hearing.

Counsel approved to conduct a proof or appeal

In the case of a grant of prior approval for counsel to conduct a proof or appeal, counsel can consult with the client, witnesses and other parties to the proceedings , give advice, prepare and carry out reasonably ancillary work without the need for further approval to the conclusion of the proof or appeal.

Reasonably ancillary work can include:

• adjusting/ amending pleadings (please ensure that the legal aid certificate covers any new crave which you introduce by way of amendment)
• conducting pre proof, preliminary and case management hearings
• providing oral or advice in written Note from to the solicitor on the line of evidence for the hearing, and
• drafting Notes/documents required in terms of the court rules or ordered by the court
• appearing at any expenses hearings and giving advice on the prospects for an appeal.

All work undertaken will be subject to the usual accounts assessments.

Where prior approval is granted to employ counsel to conduct a proof or appeal based on emergency personal circumstances faced by the nominated solicitor, we may decide to restrict the grant to that single hearing.

In that event, we will advise you of this and further prior approval will be needed to employ counsel thereafter.

Counsel approved for another type of hearing

The automatic cover which is available where prior approval is granted for counsel to conduct a single hearing – other than a proof or appeal hearing – is more limited.

It will include a pre hearing consultation and any reasonably ancillary work from the list above which requires to be completed in connection with the hearing.

Further prior approval is still needed for any work by counsel not related to the particular hearing for which approval has been granted.

It was decided in the Petition of Matthew McAllister [2010] CSOH 112 that section 21(4)(a) of the Legal Aid (Scotland) Act 1986 Act which states, “Criminal legal aid shall consist of representation, on terms provided for by this Act

• by a solicitor and, where appropriate, by counsel”.

in addition to providing a definition also sets a test, in very wide terms, which has to be satisfied in order that we give approval for counsel. In arriving at this conclusion the court made clear that:

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

While this case concerned a criminal legal aid application the wording in relation to representation applies equally to civil legal aid. The definition of civil legal aid at section 13 of the Legal Aid (Scotland) Act 1986 can equally be seen to set a test, in very wide terms, for the employment of counsel.

You must ask for approval to employ counsel as soon as possible once the need for counsel has been identified.

The request should:

• be accompanied by all the relevant papers including a copy of the pleadings to date
• draw attention to any averments relevant to the request
• highlight any relevant issues and to allow the issues to be given proper consideration.

You should also give:

• full reasons why employment of counsel is appropriate
• detailed explanation of the background and any complex or unusual issues.

We need to assess the extent to which there are complicated or difficult aspects of the case. You therefore need to give specific details about the issues which are causing you concern. It will not be enough to say simply that a case is complex or difficult without explaining why.

We have to consider all the circumstances of the case including:

• whether there is a difficulty, complexity or novelty involved in the case either in fact or in law
• whether there is any speciality, difficulty or unusual circumstances involved in pleading or presenting the case or in examining or cross-examining specific witnesses
• the seriousness, uniqueness, gravity, importance or value of the case or other reactions likely to be aroused by the nature of the case and the evidence involved
• the number, age, character or expertise of the witnesses to be examined
• the number, nature or significance of the productions involved in the case.

You must explain the specific circumstances of the case. The information needs to be adequate to allow us to take an overall view of the case.

Parity of representation may not, of itself, be enough to justify employing counsel.  In cases where we have approved counsel for another legally-aided party in the action, this could be a persuasive factor. We will consider carefully whether there is any basis for distinguishing between two legally-aided parties by granting counsel to one party only.

Where the case is likely to involve cross-examination or criticism of another solicitor, practising in the same locality or of some other locally-based court official, we will view this as a supportive factor.

Applications for approval may refer to your particular circumstances and persuasive factors could include:

• if you cannot attend a diet personally because of exceptional personal or business circumstances
• if you cannot attend the diet personally, where you have had a long-standing involvement in the case and the client feels comfortable only with you
• if you cannot deal with a case because of sudden illness or the death of a key member of staff
• if there is no experienced local bar (only applicable to smaller, rurally-based courts).

Many of the factors already given apply to employing senior counsel as well as junior counsel.  Where you ask for senior counsel, we will consider:

• whether the court would normally expect to see representation by senior counsel in such as case
• whether there are exceptional factors in the case which show a need for the experience of senior counsel
• value of the claim
• whether the law applicable to the case is particularly complex or there are issues to be raised which have not previously been raised before the court
• whether a decision has previously been taken in a case with similar circumstances which does not support the case or there is difficult expert evidence to be led.

Where we grant approval for senior counsel acting alone and then you ask for junior as well we will consider whether:

• the issues of law involved or the number of witnesses and productions look likely to need the use of a junior counsel in addition to senior
• the other party in the action intends to use senior and junior counsel
• if so, are they in a comparable situation where parity of representation is justified and necessary
• the progress of the case will be slowed or halted by a refusal to allow junior to become involved.

Where you ask for the limited use of counsel, either to provide an opinion or for consideration purposes, you should:

• give full reasons why this is necessary
• give a proper explanation of the background and, in particular, any complexity to show why it is appropriate for counsel to be instructed to do this work.

You should tell us:

• the nature of the legal issue and explain why this a matter so complex or so unusual that it is appropriate to involve counsel
• whether there is enough information to place before counsel to enable them to give a meaningful opinion
• what the opinion is to be used for
• whether it will potentially save expense in the long run
• if it is premature to ask for counsel’s opinion
• where sufficient information is available, is it adequate to establish the legal issue involved and whether this is complex, novel or something which otherwise needs the use of counsel.

Regulation 21(2) qualifies the need for prior approval and allows us to consider retrospective approval for the employment of counsel stating that we can grant retrospective approval where:

we would have granted the approval for counsel had it been made prior to their actual employment; and

special reason is shown as to why prior approval was not sought.

The first part of the test (set out in the Regulation) is whether approval would have been granted had it been sought timeously.

Our policy is to apply exactly the same test and factors to the request as if it had been received in time.

For the second part, our policy on ‘special reason’ is that where a solicitor can show that:

they were prevented from making a timeous application for prior approval by circumstances which were beyond their control and these circumstances were ones which could not have been reasonably foreseen; or

the circumstances were within the solicitor’s control, and ought to have been foreseen, but the oversight was nonetheless justifiable given the particular or unusual circumstances in which the expense was incurred.

These reasons will generally be accepted as a special reason for late submission of a request for counsel.

Our policy is that the particular circumstances described must amount to more than simply plain oversight or ignorance of the Regulation to suffice as a ‘special reason’.