This page includes information on arrangements for the employment of counsel under civil legal aid. It includes information on: the tests applied in our assessment of requests for counsel (whether case-related, or linked to your circumstances); timing of requests; limited use of counsel for opinions etc.; and retrospective grants for the 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.
|Type of forum||No approval required||Approval required|
|Sheriff court, the Scottish Land Court, the Lands Tribunal for Scotland, the Upper Tribunal for Scotland or the Employment Appeal Tribunal or in proceedings before the Proscribed Organisations Appeal Commission, the Social Security Commissioners or the Upper Tribunal||n/a||Any use of counsel (solicitor advocates excluded from definition of counsel)|
|Court of Session||1 junior counsel, or 1 solicitor advocate||Senior counsel; more than one junior counsel; more than 1 solicitor advocate|
|UK Supreme Court||1 senior and 1 junior Scottish counsel||Counsel from outside Scotland|
If we grant approval for a proof, then counsel is able to consult, give advice, prepare etc. without the need for further approval to the conclusion of the proof. This will include 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.
It was decided in the Petition of Matthew McAllister  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
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:
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:
You should also give:
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:
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:
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:
Where we grant approval for senior counsel acting alone and then you ask for junior as well we will consider whether:
Where you ask for the limited use of counsel, either to provide an opinion or for consideration purposes, you should:
You should tell us:
If you need approval, you should apply to us before employing counsel. However we can grant approval retrospectively but only if we are satisfied that we would have granted the application if submitted on time and there was special reason for failing to get our prior approval. We do not regard oversight as a special reason. The ability to ask for retrospective approval does not apply where prior approval was asked for but refused.
After a grant, and prior approval needed
This page includes information on the employment of expert witnesses in civil legal aid. The guidance includes information on when prior approval is required; the application procedure (including use of templates); how to distinguish an expert witness and the status of certain common types of witnesses; timing of applications; how we will assess experts’ costs; and cost limit information.
After a grant, and prior approval needed
This page includes information on our approach to approving ‘unusual’ work and work involving ‘unusually large expenditure.’ It sets out when prior approval is required for these types of work and provides information on several examples, including mediation; child welfare reports; family therapy; supervised contact; and vulnerable witnesses. It also includes information on documents to be submitted with these applications for approval.