How to calculate and seek payment for A&A: the role of expenses/property recovered or preserved

Unless the particular property is subject to an exemption, you must use that property as the source of payment of your fees and outlays.  You may only charge at advice and assistance rates, within the maximum limit of authorised expenditure at the relevant time.  You must not ask us for payment from the Fund, unless the fees and outlays incurred exceed the value of the property.

You do not have to pay recovered expenses or property recovered or preserved into the Legal Aid Fund.  You simply deduct the fees and outlays and make over the balance to your client with a statement accounting for the payments.

Your client may ask the auditor of the sheriff court to tax your account if they are dissatisfied with it.

We will not pay the part of the account that is covered by any recovery unless we have granted a hardship application.

Where you consider the client would suffer grave hardship or distress if the property recovered or preserved were applied to payment of the account this is classed as “client hardship”.

It is within our discretionary power to waive the statutory provisions where it is clear that your fees and outlays could only be paid out of the property. We need to be satisfied that you have taken all reasonable steps to obtain payment out of the property (“solicitor hardship”).

We will pay you for sending a letter to your client or their new solicitor to find out whether property has been recovered or preserved.  If you do not receive a reply we will allow one non-formal letter of one page and one formal letter to follow up. However, we cannot pay for postage costs from the Fund.

We will consider the potential for recovery if your client has secured a fresh grant of advice and assistance from another solicitor, on the same matter. We will not accept an account from either solicitor until this is resolved.  Therefore, you and the new solicitor should keep in contact to establish whether any recovery or preservation is made before sending us your accounts.

When appropriate, you should send us an application for waiver with your account using either

• the AA/HARDSHIP/1 form for applications under regulation 16(3)(a), or
• the AA/HARDSHIP/2 form for applications under regulation 16(3)(b).