ABWOR can be made available in relation to proceedings for the recovery of sensitive documents.
Recovery proceedings are defined as proceedings relating to an application for an order for recovery of documents, where:
The documents sought include medical or other sensitive documents relating to your client
The application has been intimated to your client
Your client wishes to oppose recovery of the documents on the basis that the granting of the order would infringe their rights [Article 8 of the European Convention on Human Rights].
There is no financial eligibility test and no liability for a contribution. However, ABWOR in recovery proceedings may only be made available if we are satisfied that:
ABWOR is required to allow your client to participate effectively in the proceedings
You have received our prior approval.
If ABWOR is not available or an application is refused, advice and assistance may still be made available to a client if they are financially eligible. Your client may be liable for a contribution.
Registration requirements when undertaking recovery proceedings
Although the ABWOR which is available is criminal ABWOR, if you are registered to provide criminal, civil or children’s legal assistance you can still undertake the work.
In addition, solicitors who are not on these registers can also undertake this work, and should contact our Receipts and Payments section on 0131 226 1968 to obtain authorisation to apply for ABWOR for these cases.
Qualifying criteria permitting an application to provide ABWOR
The qualifying conditions are that:
The proceedings are criminal proceedings in which an application has been made for recovery of documents by commission and diligence
The documents sought include medical or sensitive documents relating to the client who is seeking to oppose
The application has been intimated to the client
The opposition is on the basis of infringement of the Article 8 right to respect for private and family life.
Category code and initial limit of expenditure
The category code ORD should be used in all applications for the recovery proceedings.
When making an ABWOR application on LAOL, you should select the ORD category. No financial details will be required. You will simply be asked to answer the effective participation questions.
The advice and assistance initial limit of expenditure is £50.
The initial limit of expenditure under ABWOR is £215.
If you intend to provide advice only you should provide your client’s financial details. If your client is financially eligible the initial limit of authorised expenditure will be £50. Any application for an increase to that initial sum should be submitted in the usual way.
Prior approval to provide ABWOR
We require to be satisfied that legal representation is required to allow your client to participate effectively in the proceedings [regulation 13(3B) of The Advice and Assistance (Assistance by Way of Representation) (Scotland) Regulations 2003].
When making an application using legal aid online, you should provide:
A copy of the application for the approval of specification of documents/commission and diligence
The interlocutor appointing intimation.
The effective participation test
When determining whether legal representation is required to allow your client to participate effectively, we will consider:
The complexity of the case, including the existence and difficulty of any points of law in issue
The nature of the issues involved
The ability of your client to consider and challenge any document or information in the proceedings without your assistance
The ability of your client to present his or her views in an effective manner without your assistance.
The provision of ABWOR
You should be mindful of the following issues if you do not provide ABWOR on a regular basis.
ABWOR for recovery proceedings are subject to the following conditions:
You must apply for an increase in authorised expenditure if it is likely that you will exceed the initial limit, this cannot be done retrospectively
There is no scope for payment for any work undertaken prior to us granting an ABWOR application
Payment can only be made for work that is actually, necessarily and reasonably undertaken with due regard for economy
The work constitutes criminal ABWOR and sums payable by way of fees and outlays shall be calculated on that basis.