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:
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:
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:
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.
The pre-motion notice and the motion can be sent to us by email at email@example.com 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.