“First port of call” provisions: payment sources to look to before making a claim on the Fund

There is a hierarchy of the various sources of funding to which you must look before making a claim against the Fund [Section 12 of the Legal Aid (Scotland) Act 1986]:

  • Your client’s contribution
  • Your client’s expenses
  • Your client’s property (which includes money) recovered or preserved unless the property is subject to the exemptions set down in regulation 16(2) of the regulations

If such property is not exempt, you can still apply to us under regulation 16(3) to waive these provisions.  You can do so on the grounds that:

  • It would cause grave hardship or distress to your client
  • Your account could only be paid from the money or property with unreasonable difficulty or after unreasonable delay. This should be left in.

These are called the “hardship provisions” and a successful application will result in payment from the Fund.

The effect of this section, in practice, is that:

  • The client’s contribution (whether collected or not) and any expenses payable to the client (whether recovered or not) must be set against the fees and outlays.
  • If this is insufficient to pay the total fees and outlays, you must then look to any property recovered or preserved on behalf of the client.
  • Only if there is any shortfall from these sources should you send us an account.

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