The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.2) Regulations 2023 came into force on 29 April 2023.
This Guidance item has been amended to reflect the new regulations.
For the regulations in force prior to 29 April 2023, please refer to the archive Guidance item.

The other situation in which you may lodge a detailed account in connection with summary criminal or ABWOR proceedings is where, at your request, we decide that the case can be determined to be an exceptional case under regulation 4A of the fixed payments regulations.

This means that on the information you have given us we believe that it falls outside the range of cases to which a fixed payment can reasonably apply.

Determination of exceptional case status is not a separate grant of criminal legal aid.  It is simply a determination by us during the course of the proceedings as to the appropriate basis of payment at the conclusion of the proceedings.  The process is similar to the granting of sanction.

As discussed, relevant criminal legal aid and ABWOR are defined as criminal legal aid or ABWOR in relation to summary criminal proceedings other than excluded proceedings.

In the light of this definition, a case granted exceptional case status under regulation 4A remains relevant criminal legal aid or ABWOR despite the proceedings being subject to detailed accounting. Exceptional cases remain within the fixed payments structure.

This means that you cannot apply for a separate certificate in connection with:

  • proceedings arising out of the same incident in terms of regulation 4(3)(a), or
  • proceedings listed at regulation 4(3)(b).

The single case arrangements under regulation 7 of the fees and information regulations continue to apply to a case extended exceptional case status.

You are required by the regulations to lodge a detailed account where we grant exceptional case status.

The whole case is subject to a detailed account, not just the work undertaken following the grant of exceptional case status.

This applies even where there has been a transfer of the certificate, for example if the incoming solicitor obtains exceptional case status, the solicitor from whom the case was transferred must also lodge a detailed account rather than claiming a share of the fixed payment.

Exceptional case status is anomalous in that although strictly speaking the case remains “relevant” ABWOR or legal aid, certain consequences cannot reasonably follow:

  • given that the “proceedings” include proceedings arising from the same incident and ancillary proceedings (above), the detailed account shall include work undertaken in respect of all matters in the one detailed account submitted for payment.

In this section

Proceedings to which fixed payments do not apply

Exceptions to lodging a fixed payments account

Find out the two circumstances where detailed fees are used in summary legal aid.

Proceedings to which fixed payments do not apply

Excluded proceedings  

Learn what proceedings you need to lodge a detailed account for and the main features of this work.