Property recovered or preserved where your client received both A&A and civil legal aid

In civil legal aid cases where section 17(2B) directs payment of any net liability to the Fund should be made out of property recovered or preserved, in priority to all other debts, unless the property is exempt under regulation 33 of the Civil Legal Aid (Scotland) Regulations 2002.  The net liability must be paid to us, for payment into the Fund to cover all civil legal aid accounts paid in connection with that matter.

If any property recovered or preserved remains after any civil legal aid accounts has been paid, you must take payment from the remaining property to cover your fees and outlays for any linked advice and assistance account unless there is a relevant exemption under regulation 16(2). You take payment direct from the property recovered or preserved and no advice and assistance account should be submitted to the Board. Any remaining sums can be released to your client.

If you have recovered funds and feel it is appropriate to submit an application under Regulation 16 (3) (a) or (b), you must retain sufficient funds to cover your advice and assistance account until a decision has been made to either grant or refuse your application.

Property recovered or preserved provisions: differences between A&A and civil legal aid

Although the rules are similar, there are some important differences.

A person receiving civil legal aid may have to pay from property recovered or preserved in cases where they would not have to do so under advice and assistance. There are also some cases where they will have to pay for advice and assistance, but not towards the cost of civil legal aid.  You should refer to the regulations for details, but some of the major differences are:

Hardship provisions

  • Under advice and assistance, regulation 16(3) allows us in some circumstances to waive the requirement that your fees and outlays should be paid from the property recovered or preserved.
  • In civil legal aid there are no such “hardship provisions” – we do not have the power to waive the requirement for payment from property recovered or preserved. 

Use of sale proceeds from a home

  • In an advice and assistance case, the applicant has to pay out of any property, or any right to property, recovered or preserved even if their opponent did not make a claim against that property. Thus, in advice and assistance, if your client and their partner agree to sell their jointly owned house and each of them keeps their own share of the sale proceeds, that is property recovered or preserved, even if their partner made no claim for payment for your client’s half-share.
  • In a civil legal aid case, if the opponent makes no claim for payment out of the property, it is not property preserved.

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