Our prior approval is needed for employing any expert witness [Regulation 21 Civil Legal Aid (Scotland) Regulations 2002]. No specific criteria for approval are laid down in the regulations and the matter is at our discretion.
The definition we use is that, for legal aid purposes, an expert is:
You should bear in mind that you may be using professionals for purposes not falling within the definition of expert opinion evidence.
Please select a profession from the drop down tool below for a quick reference guide on when approval is required for a particular type of activity being commissioned by you from a professional.
We have introduced templates for certain experts and mediation. The categories covered and the maximum levels of expenditure (excluding VAT) allowed are shown in the templates which can be viewed by selecting ‘Expert & Templates’ from the ‘Create Sanction’ screen, then from ‘Type’ selecting ‘Template’.
If you use a template you do not need to send us substantial information about the case. In addition, you do not have to provide the name of the expert you are instructing.
Where there is an appropriate template, you can use it:
You cannot use the templates:
The templates do not allow you to instruct an expert to produce a supplementary report even if you have sufficient funding left over. If you need a supplementary report you should select ‘Expert & Templates’ from the ‘Create Sanction’ screen, then from ‘Type’ select ‘Custom’.
When you select the templates you are confirming that:
We have not introduced templates for cases where we would need a substantial amount of information before authorising a particular type of expert’s involvement. If the expert you wish to use is not included in the list of templates you need to ask for approval. This is also needed when you are asking for retrospective authority.
While you must get our prior approval to employ expert witnesses, there can be times when there is dubiety about whether certain witnesses should be regarded as “experts” or not.
Generally speaking, a witness may be deemed to be an expert where:
The expert does not actually have to be called to give evidence to meet the description of a “witness”.
Someone skilled and expert in their field may be cited and give evidence but does not need our sanction if their evidence is factual.
The following information may help you decide whether you need our approval for certain witnesses as experts. Remember that even if they are not acting as experts you may need approval if the work to be done is unusual or involves unusually large expenditure
Inquiry agents are reporting on facts as a result of their investigations. You only need approval if the work you are asking them to do is unusual, or the cost is likely to exceed £2000, meaning you need approval for unusually large expenditure.
If chartered accountants are to be employed having had no previous engagement with your client they would be acting in the role of experts. However, occasionally you may want to get the evidence of a chartered accountant who is normally employed by your client to do their books. That is not a case where approval as an expert witness is needed.
Occasionally during civil litigation you may need to employ a professional firm of searchers to do a search in the Registers of Scotland. These would not be classed as experts providing opinion evidence and you would not need approval.
Family doctors are not classed as experts if commenting on treatment given to your client, even though they have specialised medical knowledge not available to the layman. Such a witness would be giving evidence on your client’s symptoms and the treatment given. There is no need for any special authority to employ a general practitioner for work of this type.
Hospital doctors may have to speak to injuries observed by them and treatment given but they would be classed as witnesses as to fact and no special authorisation is needed for this type of report.
Whether a medical consultant counts as an expert depends on whether they are speaking to treatment they have given to your client or whether they have been consulted for an opinion. There are cases where you will obviously want to get a report from a specialist on the nature of your client’s infirmities/treatment and on the prospects for continuing disability.
In this situation, the specialist is not acting as an expert witness but giving evidence as to fact. The opinion provided is their professional opinion as treating doctor and they can, therefore, be regarded as a witness as to fact.
Where the specialist has not been involved with the case prior to the action, they are an expert witness.
Photographers employed to take photographs of a locus are not classed as expert witnesses.
An approval request must be made via our online “sanction” function.
If you are applying for a custom approval, you should send us:
You should ask for approval once it is clear that a specific expertise is needed to advance the case. You should make sure the issues the expert aims to address are covered by the grant of legal aid.
You should apply for approval once legal aid has been granted, in cases where:
Where you are not using a template, you should:
In choosing an expert, you must consider whether they are appropriate for the particular case in question. It will normally be more expensive to employ an expert witness who is based at some distance from the court than a local witness. We must be satisfied that no comparable expert is available nearer the court.
We must be satisfied that it is reasonable to sanction the use of the expert.
You must make it clear whether:
If you are not using a template you should:
If the cost of the report is more than £1,750, you need to provide competitive quotes in support of the application or tell us why this is not appropriate.
We will impose a limit on the expenditure allowed to instruct experts. You must make the expert fully aware of that limit. They should know you have to ask us for an increased limit to allow the work to continue if it is to go over the limit.
We will pay only up to the amount fixed and you may be personally liable to the expert for any extra costs. Where an expert has been told of the limit but it has been unavoidably exceeded, we may still meet the expert’s reasonable costs if we are satisfied that this is appropriate.
If we grant approval subject to a fixed amount of expenditure, this does not allow the expert witness to automatically claim a fee at that amount. We require a detailed breakdown of how the claim has been calculated.
We expect to see:
You do not need separate approval to cover any necessary attendance at court by that expert. However, if you got the report before legal aid was granted you need to get approval for their attendance at court.
What should I make clear at the point of commissioning evidence and while the work is being done?
It is important to specify your instructions carefully because we will review your invoices to determine if the resulting report fails to address or departs from the instructions given by you. The same applies to how clear the professional is from the start about how we will assess final costs payable to you after invoicing has occurred.
For example if you request an assessment of cognitive functioning or intelligence then the report will need to include information about recognised tests or assessment of these issues. If it fails to do so we may restrict or abate the outlay entirely.
What can I do to minimise the risk at payment stage?
Specify your requirements:
Specify our policy on what can be paid for and how to invoice you:
Provide the professional with appropriate information about the case:
What is your policy on cancellation fees and how can I avoid problems?
We recognise that some experts are refusing to agree to appear to give evidence unless a cancellation fee is agreed to cover the eventuality of the case being settled or adjourned.
Here are some ways you can manage this risk:
It is for you to agree the terms for any work which will be carried out with the professional. However you can provide information about our cancellation policy when you commission the work.
If cancellation does occur:
I have received a report and the professional has invoiced me – how can I check if there are issues I need to clarify rather than waiting until the end of the case?
Firstly check that a full breakdown has been provided and the items meet the guidance you provided to them.
You can also take advantage of our reimbursement of outlays scheme providing it falls within the conditions explained below. We have changed our process so that we assess your outlays at the point of reimbursement to avoid, as far as possible, some of the problems that can arise waiting until the end of the case.
The outlay does not need to be paid by you beforehand, it simply has to have been incurred. However you cannot make any claim for payment in advance in contemplation of an outlay that may be incurred.
You can apply for a reimbursement of outlays subject to the following conditions:
You need to attach the interlocutor to the claim when seeking reimbursement for a child welfare reporter/curator. This will prevent delays arising if we need to establish the remit of the child welfare reporter/curator.
After a grant, and prior approval needed
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.
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.