Increases for employment of counsel

The use of counsel under advice and assistance is limited.  You can ask for increases:

• To get an Opinion of counsel
• To cover the cost of consultations with counsel (but not where this is within the context of representation).

If you are seeking an increase for an Opinion of counsel:

• You should give full reasons why this is necessary
• There should be an explanation of the background and in particular, any complexity and/or novelty
• You should always try to show that the problem is one where it is appropriate to involve counsel.

We will consider the following when you seek an increase for an Opinion from counsel:

• What is the legal issue counsel is to consider?
• Is this a matter so complex or so unusual that it appears to you that it is appropriate to involve counsel?
• Is there enough information to place before counsel to enable counsel to give a meaningful opinion?
• What is the opinion to be used for?
• Will the parties agree to abide by its terms and thus avoid litigation?
• Will it perhaps save expenses in the long run?
• Is it premature to ask for counsel’s opinion?
• Is the opinion necessary for consideration of a legal aid application?

You may want to get an Opinion of counsel in connection with an appeal application to:

• the Sheriff Appeal Court or Court of Session covering the prospects of an appeal under the Children’s Hearings (Scotland) Act 2011 and whether the statutory tests for granting an associated legal aid application might be met.

Where your client was legally aided and had approval for counsel (junior and/or senior) to conduct the proceedings which are the subject of the appeal then that previous grant will cover an Opinion from that counsel on the prospects of success of making or responding to an appeal and the statutory merits tests for granting a legal aid application for appeals under the 2011 Act.

Where your client was not legally aided or not represented by counsel in first instance you can ask for an increase in advice and assistance for an Opinion.

We do not need to see an Opinion from counsel in every application for legal aid to appeal to the Sheriff Appeal Court or Court of Session. Ordinarily, if we need an Opinion from Counsel we will continue your application to ask for one.

Requests for Opinions from senior counsel will be for advice on a very complex issues or a novel point of law.  A note from junior counsel recommending the employment of senior counsel may be helpful.

Advice and assistance cannot be made available for any step in instituting, conducting or defending associated children’s court proceedings.

For example, counsel drafting or responding to Grounds of Appeal for the sheriff or Sheriff Appeal Court would not be covered by advice and assistance.

Although Regulation 21 of the 2013 Regulations allows us to approve the employment of counsel to represent an individual at a children’s hearing or pre-hearing panel, in practice it is unlikely that such approval would be granted. However any request made will be considered on its own facts and circumstances.

This is because children’s hearings and pre-hearing panels are non-adversarial.  Their purpose is not to establish or re-examine disputed facts or to reconsider the legitimacy of an earlier decision but to make decisions about the need for compulsory measures of supervision for the child.  A panel consists of three lay members (with appropriate training) and encourages at all times the participation and views of the child and other parties involved.  If you meet the five key competencies laid down in the Children’s Code of Practice, you are likely to be able to represent your client’s interests in such a case without involving counsel.