A grant of civil legal aid covers only the fees and outlays of the solicitor and counsel acting for the assisted person. If expenses are awarded against an assisted person, they are personally liable for these. The party entitled to expenses must look to the assisted person for payment. However, in some circumstances an unassisted party may obtain an order of court allowing payment of expenses out of the Fund in terms of section 19 of the Act.
Under section 18(2) of the Act, an assisted person found liable in expenses can apply to the court making the award for an order restricting their liability. This will be to an amount the court considers reasonable in all the circumstances of the case, having regard to the means of the parties and their conduct in the dispute. In many cases, the court will assess the assisted person’s liability at “nil”. This procedure is generally referred to as “modification”.
This is a matter for the court’s discretion.
Rules 4(1) and (2) of the Act of Sederunt (Civil Legal Aid Rules) 1987 set out a number of steps that the court may require to be followed when considering a motion for modification of expenses.
We understand that the courts’ practice is that modification can only competently be sought before decree for expenses is granted (see Imrie v Love, Edinburgh Sheriff Court, 23 May 2002, unreported). Where the court decerns for expenses, modification is incompetent (Gilbert’s Trustee v Gilbert 1988 SLT 680 and Stewart v Stewart 1989 SLT 80).
In Court of Session cases, regard should be had to Rule of Court 42.6, which allows an assisted person who has been found liable for expenses to apply for modification of expenses within 14 days of the date of the Auditor’s report.
Modification can be sought where the assisted person has entered into a joint minute agreeing to be liable for expenses (see Jeffrey v Jeffrey 1987 SLT 488 and Clelland v Clelland 1988 SLT 674).
Modification is incompetent where civil legal aid has been terminated under regulation 32. Where legal aid was only available for part of the proceedings, modification cannot be sought for periods when legal aid was not in force (regulations 34 and 35).
Where work is undertaken under the special urgency provisions of regulation 18, modification cannot be sought unless civil legal aid is subsequently granted and covers these steps.
A decision of a lower court in relation to modification can be appealed, where it can be shown that the lower court has erred in the exercise of its discretion (Cullen v Cullen 2000 SC 396). However, if the appeal court interferes with the decision of the original court, any reassessment of the liability of the assisted person is carried out by the lower court.
Any party concerned can competently apply to the same court to reassess the amount of an award of expenses made in terms of section 18(2), on the ground that since the award was made there has been a relevant change of circumstances. The court may then reassess the amount of the award as seems proper (section 20(4)).
It appears to be a prerequisite that the court originally made an order modifying the assisted person’s liability for expenses. In other words, even if there has been a change of circumstances, reassessment is precluded if no application for modification was made prior to decerniture for expenses or if the court refused an application for modification.
The application for reassessment must be made within one year of the date of the award (regulation 38). It is unclear from the terms of section 20(4) whether a second or subsequent application may competently be made to the court for a reassessment on the ground of a further relevant change of circumstances within one year of a previous reassessment. The court procedure for an application for reassessment is by minute lodged in the original process, as set out in rule 4(3) of the Act of Sederunt (Civil Legal Aid Rules) 1987.