Expenses of unassisted party out of the Legal Aid Fund

An unassisted party may obtain a court order for payment of their expenses out of the Legal Aid Fund [section 19 of the Legal Aid (Scotland) Act 1986].  Such an order will normally only be sought where the court has modified an assisted person’s liability in terms of section 18(2) of the Legal Aid (Scotland) Act 1986.  However, an order may be sought in the absence of modification where the decree for expenses cannot be enforced for some reason, perhaps because the assisted person has been sequestrated.

The main features of the statutory provisions are:

• An order for payment of expenses out of the Fund is competent only where the proceedings are finally decided [section 20(1) of the Legal Aid (Scotland) Act 1986] in favour of the unassisted party.
• The whole or part only of the unassisted party’s expenses may be awarded out of the Fund.
• The order may only relate to expenses attributable to any part of the proceedings for which the assisted person was receiving legal aid.
• The court must consider making an award of expenses against assisted person before awarding expenses out of the Fund.
• The proceedings must be such that an order for expenses might be made, apart from the Act.
• At first instance, an order may be made only if the assisted person instituted the proceedings and the court is satisfied the unassisted party will suffer financial hardship if the award is not made. In appellate cases, the financial hardship requirement falls away.
• The court must be satisfied that it is just and equitable that the award should be paid out of public funds.

Appeals

Normally an application under section 19 is made where no further appeal is considered, made or proceeds.  If an appeal is taken against the decision concerned,  the court may make or refuse to make an order [section 19 of the Legal Aid (Scotland) Act 1986] but postpone its effect.  If an appeal is allowed to be made late, the court may order the unassisted party to repay any expenses paid to them to the Fund.

You must follow the court procedure set out in Rule 6 of the Act of Sederunt (Civil Legal Aid Rules) 1987.

The main procedural rules are:

• Application is made to the court by motion .
• At least 28 days prior to the motion being enrolled, a mandatory pre-motion notice found at Schedule 2 in the 1987 Rules must be completed and it, along with appropriate vouching, should be sent to us.
• Intimate the motion to us along with the notice.
•  Once the 28 day period of notice has elapsed, enrol the motion in court along with copies of the notice form and documents sent to us.

We will provide a response to you, normally within 7 days of receipt of the notice detailing our initial position and identifying what further information or vouching we need.

For all applications the notice will require your client to:

• Provide an estimate of the expenses.
• Detail if there has been modification of the assisted person’s liability.
• Address why it is considered to be just and equitable that an award be made.
• For applications where the court is called upon to apply the financial hardship test, relevant information about your client’s financial circumstances should be provided.
• All payments your client has made on account of your fees and outlays must be disclosed.

Where issues are raised, the 28 day period allows time for further investigation and correspondence between you and us to help resolve these.

After the 28 day period, the motion, a copy of the notice form and any vouching documents should be lodged with the relevant court.  This motion must be intimated to us.  We are entitled to make representations at the motions hearing, although we will usually advise you whether we intend to make representations before this.

Schedule 2 – Section 19 notice to SLAB

The pre-motion notice and the motion can be sent to us by email at section19apps@slab.org.uk or by post to Thistle House, 91 Haymarket Terrace, Edinburgh EH12 5HE.

If an order for payment of expenses to an unassisted party from the Fund is granted, we will assess these expenses on the party and party basis [section 19(6) of the Legal Aid (Scotland) Act 1986]. We will also include the expenses of applying for the order for payment out of the Fund.  This will be calculated in accordance with the ordinary judicial tables of fees, not the legal aid tables.