A grant of civil legal aid covers only your fees and outlays. If expenses are awarded against your client, and subject to any modification, they are personally liable for these. The party entitled to expenses must look to your client for payment. However, in some circumstances they may obtain an order of court allowing payment of expenses out of the Fund [section 19 of the Legal Aid (Scotland) Act 1986].
If your client is found liable in expenses, they can apply to the court making the award for an order restricting the amount to one which they are capable of paying [section 18(2) of the Legal Aid (Scotland) Act 1986].
This will be to an amount the court considers reasonable in all the circumstances of the case, including the means and conduct of all parties. In many cases, the court will assess your client’s liability at “nil”, but as it it depends to a large extent on the client’s financial circumstances, there is no guarantee of this. It is a matter for the court’s discretion. This procedure is generally referred to as “modification”.
Court rules set out various procedural steps which apply to motions for modification [rule 4, Act of Sederunt (Civil Legal Aid Rules) 1987].
You should be aware of the following points concerning competency of modification:
Any party concerned can apply to the same court to reassess the amount of an award of expenses made if there has been a relevant change of circumstances . The court may then reassess the amount of the award [section 20(4) of the Legal Aid (Scotland) Act 1986].
The application for reassessment must be made within one year of the date of the award [regulation 38 of The Civil Legal Aid (Scotland) Regulations 2002]. It should be done by a minute lodged in the original process [rule 4(3), Act of Sederunt (Civil Legal Aid Rules) 1987].