The use of counsel under Advice and Assistance

The use made 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 in the context of representation).

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

• You should give full reasons why this is necessary
• You should provide an explanation of the background and any complexities
• You should always try to show that the problem is one where it is appropriate to involve counsel.

Factors we will consider on why you wish to get the opinion:

• 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?

We are often asked to grant increases for an opinion of counsel in connection with an appeal application.

If your client was legally aided when the court considered the matter at first instance and there was authorisation to instruct counsel in those proceedings the previous grant of legal aid will cover an opinion from junior counsel (or senior counsel if senior was instructed with our approval) on the prospects of success of an appeal.

Requests for senior counsel will be for advice on a very complex issue or a novel point of law.  You should explain the complexities or novel issues in detail when asking for any increase to cover this cost.

Advice and assistance cannot be made available for any step in court proceedings (except where these are covered by ABWOR).  We must therefore refuse all requests for counsel to draft or revise pleadings.