There is no legal requirement for you to seek an award of expenses where your client is succesful as an assisted person. We have no specific statutory power to require that your client seek an award of expenses, nor is our agreement required for your client to waive their right to expenses.
It is your responsibility to advise your client on the most appropriate course, and it is for your client to decide whether to seek an award of expenses. However, the cost burden of litigation should not fall on public funds where, in all the circumstances, it is appropriately borne by a party to the case, and this is one of the factors which should be kept in mind when making a decision about expenses.
Your client should, wherever possible and assuming there are reasonable prospects of recovery, seek an award of expenses so we can recoup the public funds spent on their behalf. This applies whether or not the unsuccesful opponent is an assisted person, although if they are, it may be more likely that the overall assessment of all factors points towards not seeking expenses.
Remember that if your client has a contribution or clawback from property recovered or preserved is an element of the case, not seeking expenses may have an impact for your client.
If, in a particular case, you would normally advise a private client to seek an award of expenses, you should consider very carefully whether there are any grounds for taking a different approach in a legal aid case.
You must weigh up if seeking expenses could result in further procedure, at a cost out of proportion to the expenses.
A defender in, say, an interdict action may have an arguable case to defend on the merits, but may be content to live with the terms of an interim interdict, provided they do not have to pay expenses. If so, there may be some justification for dropping the crave for expenses to avoid the action becoming fully defended.
However, do not simply decide against seeking expenses because the opponent states they will not oppose the action if no expenses are sought, but defend if a claim for expenses is not dropped, if there are other reasons which on balance support the pursuit of expenses.
Your client may be entitled to a full or partial refund of any contribution payable if expenses are recovered from the opponent. Even if your client currently has a nil contribution, this could be reassessed at a future date, and a substantial contribution may become payable by the assisted person.
In all cases where there will be clawback, and any cases where there might be, recovery of expenses is a very important. If expenses are successfully recovered from the opponent, the net cost borne by the Fund will be lower or even nil. This will reduce the amount of, or avoid, clawback from any property recovered or preserved by your client.
Any sum of money recovered under an award of, or agreement as to, expenses in favour of any party who is, or has been, receiving legal aid for the proceedings must be paid to us [section 17(2A) of the Legal Aid (Scotland) Act 1986]. The requirement is for any sum recovered to be paid to us, even where your client has been assisted for only part of the proceedings.
It also applies whether or not you intend to opt to seek payment of the judicial expenses in respect of fees and outlays rather than per the table of fees for legal work.
We have power to take any proceedings needed to enforce or give effect to any award or agreement as to expenses, in our own name or in the name of your client [regulation 39(2) of The Civil Legal Aid (Scotland) Regulations 2002].
Where expenses are paid directly to us, our receipt is a good discharge to the payer.
You must tell us promptly when a final order is made or an agreement is reached in terms of which expenses are recoverable from the opponent. At the latest, you should tell us when you send us your account, when you must produce a copy of the interlocutor disposing of the question of expenses. In most cases, we will seek payment of the expenses from the opponent ourselves, after settling your account.
We try to secure payment of the expenses on an informal basis. If this is impossible, we may ask you to frame a judicial account, have it taxed and extract decree for expenses. We will then enforce the decree against the party liable. (The exception is if property is also recoverable from the opponent, in which case, you should assume responsibility for ensuring that the opponent pays both the principal sum (or otherwise transfers property) and the expenses.)
You should tell us as soon as possible of the terms of the decree or settlement and of the steps being taken to finalise the matter. Where you propose to enforce a decree, you need our prior approval for each step in the execution of diligence. However, if there is a special reason you failed to get this, we can give retrospective approval (see regulation 22 of The Civil Legal Aid (Scotland) Regulations 2002).