Proceeding for which civil legal aid is not (or only partially) available: ‘excepted proceedings’

There are certain proceedings for which civil legal aid is not available:

  • defamation proceedings (but see the Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2010)
  • Election petitions
  • Simplified divorce applications
  • Some simple procedure actions at first instance
  • Petitions by a debtor for his own sequestration.

Limited availability of civil legal aid for proceedings under the Debtors (Scotland) Act 1987

Proceedings under the Debtors (Scotland) Act 1987 are also excluded from legal aid. There is an exception for applications made for time to pay directions and for variation of time to pay directions.  Appeals arising from any case brought under the 1987 Act are within the scope of legal aid.  The right of a third party to apply for legal aid is not precluded.

You may use these provisions to pursue or defend debt actions (although most simple procedure payment actions for less than £3000 are excluded), but not simply for time to pay orders/directions in summary cause actions. However, if we have granted legal aid either to pursue or defend the merits or quantum of a summary cause payment action, we regard that as covering work done to seek a time to pay direction.  Where this is validly dealt with, legal aid will also cover any subsequent variation of the direction provided we are notified on each occasion that variation is attempted or opposed.

Simple procedure actions: limited availability of civil legal aid

Legal aid is not available in the following categories of simple procedure actions at first instance [Schedule 2 Legal Aid (Scotland) Act 1986]:

  • Proceedings for payment of a sum of money not exceeding £3,000 (exclusive of interest and expenses but there are exceptions for actions of aliment/interim aliment, and actions in respect of personal injury which mean that for both these specific types of action legal aid is available
  • Actions ad factum praestandum and proceedings for recovery of possession of moveable property in which (in either case) there is included as an alternative to the claim, a claim for payment of a sum of money not exceeding £3,000 (excluding interest and expenses)

There are various actions, which will use simple procedure where legal aid is available at first instance. Such as:

  • Actions for payment for a sum of money in excess of £3,000
  • Actions of aliment
  • Actions in respect of personal injuries
  • Actions ad factum praestandum where there is no alternative monetary crave or any alternative crave is for a sum in excess of £3,000
  • Actions for recover of possession of moveable property where there is no alternative monetary crave or any alternative crave is for a sum in excess of £3,000
  • Actions for recovery of heritable property
  • Actions of forthcoming
  • Actions of multiplepoinding

Legal aid is available for all simple procedure actions in relation to appeals.

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