TOOL: find the merits guidance for your case

In assessing reasonableness, we will consider several factors:

• Value of the claim
• Prospects of recovery
• Attempts made to negotiate settlement of the claim without referral to court

Evidential requirements for actions of payment

Your client’s statement should specify:

• The sum claimed to be due and the nature of the claim
• Steps that have been taken to obtain payment before submitting the application

Supporting information should be produced including supporting statements from witnesses to show that work has been undertaken in accordance with the contract.  If support is not available give an explanation why it is not.

Copies of all relevant documents including a copy of any contract where relevant, should be submitted.

A bare denial is not sufficient or satisfactory for a legal aid application.  Your client must produce evidence countering the pursuer's averments and evidence supporting their defence.

Your client may also seek legal aid to cover a counterclaim, for which they would be expected to produce the same standard of supporting evidence as for raising an action.

Evidential requirements for defence of payment action

• Your client may oppose the action on the grounds either that the pursuer is not due the sum sought, or that the sum sought is excessive. If quantum is being challenged your client should explain why the full sum sought is not due.
• A supporting statement should be produced, if available, or an explanation why not.
• A copy of the writ or summons with full answers to all averments
• Copies of any relevant documents should be submitted, with relevant parts highlighted. Any reports obtained from experts on the standard of work should be provided.
• Any statements from witnesses about the quality of work carried out should be submitted.
• A copy of the offer and the pursuer's response should be produced. If the defence is that payment has been made, a copy of the appropriate documentary evidence should be produced.

Your client may wish to defend actions for payment at the instance of HM Revenue and Customs in a situation where there is no defence.

The Taxes Management Act 1970 contains an appeal mechanism for aggrieved taxpayers: 

• If they are unable to settle appeals with the Inspector, they are entitled to appeal to the Special or General Commissioners.
• Appeals then lie to the Inner House of the Court of Session

If your client chooses not to or exhausts appeal against any assessments they have no defence. 

No appeal can be made against a tax liability which arises from such a return since it is based on the taxpayer’s own figures.  If they have made an error in their return they are entitled to amend it. 

If the issue cannot be resolved by your client and an Inspector it should be listed for hearing by the General or Special Commissioners.  Again, any further appeal lies to the Inner House of the Court of Session and the courts have no jurisdiction to alter the liabilities in an action for payment.

Evidential requirements

Your client’s statement should explain in detail the circumstances in which they want to reduce the deed and how they will benefit from reduction.

• A copy of the deed or court decree or other matter to which objection is taken should be produced, if possible, or an explanation given why not.
• Evidence of title to sue should be produced, where possible.
• A supporting statement should be produced, if available, or an explanation given why not.

Evidential requirements

• Copy of the summons
• Copy of the deed (if possible)
• Your client’s statement, which should detail the circumstances in which reduction is opposed and answer the averments in detail
• A supporting statement, if available, or an explanation why not.

If you client wishes to oppose a guardianship order they should provide:

• A copy of the guardianship application 
• A statement from the person applying for legal aid explaining why the order sought is not appropriate
• A copy of statutory reports obtained by the person seeking the order, if available.

Your client should include as much information as possible to explain why they are opposing the order.

If your client also seeks to counterclaim then information should be provided, to explain why the order sought is appropriate.

This could be:

• A statement from a third party such as a friend, family member, or where your client’s capacity is in dispute, a GP or other health professional,  to explain why the order sought should not be granted.
• Information to explain why they are a suitable person to seek the appointment.

If we have advised you to use the category code AISAW then it is likely that there will be no financial assessment.

A financial assessment of the adult’s resources is required in any other proceedings such as a variation of an existing order or recall of the appointment of a guardian. Please contact Wendy Dalgleish or Kim Blance for assistance if you are not sure whether a financial assessment is needed.

Initial statutory reports

Sanction is not needed for the first set of statutory reports, which the court needs to make a decision. We understand that it can take some time for the required Mental Health Officer report to be obtained. It will often be appropriate wait until the MHO has been appointed and their reports are completed, before instructing medical reports, to avoid them becoming out of date.

Sanction will be required to instruct any further reports if reports paid for by legal aid become time barred. We will meet the costs of these subsequent reports if you can show that reasonable steps were taken when instructing the reports to mitigate against this risk. If this happens, we prefer the same doctor is instructed to minimise the additional costs involved.

In some cases where your client seeks financial powers there may be a need for a report on the suitability of the proposed financial guardian, known as an AWI 8 report. Such a report is mandatory when the applicant seeks only financial powers. The report can also be requested by the court in other cases. Sanction is not needed for this report (unless the cost exceeds £2000, in which case sanction for unusually large expenditure is needed), but it will need to be shown that it was appropriate for the report to be obtained at the accounts stage.

Safeguarder

Sanction is not needed to cover the fee of a safeguarder as long as you have a valid grant of legal aid in place when one is appointed.

Please note that we will only cover the safeguarder’s fee if the court orders the assisted person to meet that cost. You might need to increase your case cost limit if a safeguarder is appointed.

Bond of caution

You should ask for sanction to cover the costs of the premium.

Before we can consider the request, we need:

• Details of the circumstances leading to the appointment of the guardian
• Details of any litigation - including any claims that may be made in the litigation
• Information to show that there are no other readily available funds to meet the costs of the premium

Your client should amend their application to show the details of any opponent if you are seeking guardianship (and the proceedings are contested by any party).

You should provide a stage report so that we can decide whether the tests for legal aid are still met if the prospects of success change or there are any significant developments that will alter our assessment.

You are likely to need to apply for a case cost increase if a safeguarder is appointed, and the assisted person is found liable to meet the cost. 

Our procedure

• The decision maker will consider whether the statutory tests of probable cause and reasonableness are met.

1. We will use the guidance above. You should provide us with the necessary information required to decide whether the test of probable cause is met and it is reasonable for legal aid to be granted.

• We will generally consider that the reasonableness test is satisfied where your client wants to be appointed guardian and they are the most suitable candidate, there is information provided to show that the adult lacks the capacity to deal with their affairs that the applicant is a suitable person to be appointed and that guardianship appears to be the least restrictive option available.

1. In cases where your client wants to oppose guardianship we will consider each case based on its own facts and circumstances. We usually grant legal aid if your client is the adult involved in the case and they provide evidence to show that they have sufficient capacity to deal with their affairs, or that the orders sought are unduly restrictive.

We are also likely to grant legal aid in cases where an individual wants to oppose guardianship because:

• Your client has evidence they are not a suitable person to be appointed, for example due to past financial impropriety.
• They have very limited contact with the adult who is the subject of the order.
• There is evidence that the relationship between the adult and the proposed guardian would not allow the guardian to operate in the best interests of the adult.
  

If the application is refused you can submit a review application.

Practice notes

We will always you to comply with any applicable Practice Note issued by the Sheriff Court.

AWI1 reports

Reports from non-treating professionals are paid between £100-£185 inclusive of all travel and mileage (excluding VAT). Reports from treating psychiatrists and the adult’s own GP are payable to an upper limit of £80 (inclusive of all charges) and do not require a detailed invoice. Anything claimed in excess of these figures requires a detailed breakdown of the work done.

AWI8 reports

A copy of the interlocutor requesting the report should be included with the account. If there is no interlocutor, you will need to include details from the Court confirming that the report was requested by the Sheriff. We will be unable to pay for the report without this.

Land certificates

We will meet the outlay for obtaining a land certificate to enable the land certificate number to be included in the summary application.

Conveyancing

Where the property is not on the land register we will meet the outlay for obtaining a conveyancing search report for a proper description of the property to be narrated in the summary application.

Tracing agents

The whereabouts of an immediate family member or other person likely to have an interest in an application may be unknown. Generally, the use of tracing agents is not necessary as the court may dispense with the need to effect service upon the individual based on the averments made in the Summary Application.

Drafting summary applications

We understand that the draft summary application may need to be updated once all the required reports are returned. The Schedule 5, paragraph 4(a) sets out a framing charge per sheet of 250 words.

There are two different scenarios for charging:

• You can charge for the final sheetage when the summary application is lengthier than the initial draft.
• You can charge for the final sheetage plus a revisal fee in terms of Schedule 5, paragraph 5(b) if the application is reduced.

Framing forms

It should be clear from the account what forms of service are being claimed for. A formal fee at the current rate is payable for framing forms:

• Form 20 – Notice of application under the 2000 Act
• Form 21 – Notice to Manager under the 2000 Act
• Form 22 – Certificate of delivery by Manager under the 2000 Act
• Execution of service

A non-formal framing fee at the current rate shall be allowed for:

• Citations 

Service

Service upon the adult and all interested parties should be done by first class recorded delivery post.

We will only consider payment of Sheriff Officer fees if the postal service has been unsuccessful. You should explain in your account why this was necessary.

Sheriff officers will be able to provide advice on the appropriate method of delivery if you need to make service abroad and the postal service is not an option.

Work outwith scope of civil legal aid

Access to fund (Intromit with Funds) orders are obtained without recourse to court.

The process for appointment is usually an administrative one, for which the Office of the Public Guardian (OPG) is responsible. It is, therefore, usually completely separate and not ancillary to the proceedings for guardianship.

The OPG does have the power to convene a hearing if objections are received to this. However, you do not need to be present at that hearing. Civil legal aid or ABWOR is not available for this purpose.

A diagnostic grant of advice and assistance may be appropriate to give initial advice on the process and to advise the client to contact the OPG or a CAB for assistance with the necessary paperwork. When assessing eligibility for advice and assistance it is the resources of the adult with incapacity that need to be taken into consideration.

Appellate proceedings are distinct from proceedings in the court below and need a fresh application for legal aid.  However, if the subject matter is an interim matter only the existing legal aid may be amended to cover the appeal.  You should submit an AMEND application with appropriate documentation so that we can consider extending the legal aid.

If your client holds a decree in the court below, we will be satisfied that they have probable cause to oppose the appeal by the other side. You should show that the decree gives a benefit to your client that is reasonable for public funds to support.

Where your client wishes to initiate the appeal either on an interim order or against final judgement, we need:

• A copy of the judgement appealed against
• A statement of the grounds of appeal
• Comments on the prospects of success and if counsel was instructed in the court below, their opinion.

Appeals against refusal of permission or against a restriction of permission to proceed with judicial review, do not need a fresh application for legal aid.   Where a grant of legal aid has been made, you should submit an AMEND application together with the supporting documentation.  

You also need to submit an AMEND application where you have previously submitted an application for civil legal aid for the proceedings for judicial review, but we have not taken a decision on it at the time the need to appeal the decision arises.

Where there is no grant of legal aid or if a grant has not been extended to cover the contemplated appeal, special urgency cover is available for initiating the appeal. Any further work to be done under the special urgency provisions needs our prior approval.

We have special arrangements to expedite you client’s application for an appeal to the Supreme Court. Most applications are determined without the need for the case to be referred to one of our Committees unless the application concerns issues of wider importance which merit this.

If your client is applying for leave to appeal from the Inner House of the Court of Session to the UK Supreme Court they will now either need:

• Leave to appeal from the Inner House
• Permission from the UK Supreme Court itself

If your client has a grant of legal aid for an appeal to the Inner House of the Court of Session and they want to ask for leave to appeal to the UK Supreme Court they are covered under the existing grant of legal aid. The grant does not need to be amended.

If leave is refused and your client has to apply to the UK Supreme Court for permission to appeal, you should apply for special urgency cover. You will need to get separate authorisation for any oral hearing fixed on the application for permission to appeal.  You should also include a note from senior counsel on the prospects of appeal. While you await the outcome, submit your application for civil legal aid and we will hold it pending the outcome of the permission hearing.

You should also include:

• Interlocutor appealed against
• Reclaiming print
• Such parts of the appendix as may be appropriate
• Opinions of the judges of the Inner House
• Details of the outcome of the permission hearing
• Any other relevant papers.

Your client should provide:

• A statement giving as much background information as possible and explaining how they are or will be affected by the decision.
• A statement from any representing solicitor present at original proceedings should be submitted to explain the grounds of appeal.
• A copy of any written reasons for the authority's decision

An appeal from the Upper Tribunal is heard by the Inner House.  You can apply for civil legal aid for both this and an appeal to the Court of Session against a refusal by the Upper Tribunal to grant leave to appeal a decision taken by the First Tier Tribunal.

Your client should provide:

• Copy of the judgement to be appealed
• Copy of the original decision to be appealed
• Grounds of appeal;
• Your client’s statement;
• Detailed comments on the prospects of success including comments from counsel where they have previously been instructed.

Appeals to the Inner House may raise issues of wider public interest or involve high costs.  Where this applies you must address the issues with reference to our guidance.

An application for civil legal aid in relation to such a judicial review should additionally include:

• Details of the basis upon which the appeal meets the Eba (or second appeals)test and in what respect there are either or both an important point of principle and/or some other compelling reason as defined in the prevailing case law
• Detailed comments on the prospects of success including comments from counsel where they have previously been instructed

In certain circumstances the Court of Session may remit the judicial review to the Upper Tribunal.  Where this happens the grant of civil legal aid for the judicial review continues to cover the referral to the Tribunal.  No amendment to the grant of legal aid is necessary but you should notify us of this development.

Any application for legal aid for such an appeal should provide:

• Copy of the judgement to be appealed
• Copy of the original decision appealed
• Grounds of appeal
• Your client’s statement
• Detailed comments on the prospects of success including comments from counsel where they have previously been instructed.

We will apply the usual tests of probable cause and reasonableness if your client is a child.

We will also examine the application to decide whether it is reasonable to grant legal aid to a child considering:

• Their age and ability to understand proceedings
• If it would be more appropriate for a parent or guardian to apply on the child’s behalf.

Proceedings concerning a child’s welfare

Your client may wish to become involved in proceedings about their welfare. In such cases, we will consider carefully whether the child’s views could be adequately covered by:

• One or other of the parties already in the action
• The court taking account of the child’s views without the child being directly represented in the proceedings.

If we are satisfied that the child’s views can be put forward without separate representation, we may decide it is unreasonable to grant civil legal aid to allow them to enter the proceedings.

No added welfare benefit to the child

We may consider there is no added benefit to a child becoming involved in proceedings and that it is appropriate for their parent/ guardian to represent them.

Examples of this:

• Child who wishes to raise proceedings for aliment against an absent parent outwith the UK
• Child who wishes to raise proceedings against Education Authorities
• Action needs to be taken against other bodies of the state

We will consider a child’s age to decide whether they are:

• In a position to instruct you
• Capable of understanding your advice

We will consider it reasonable to grant legal aid only where we are satisfied that:

• The child can understand the proceedings in which they are involved
• The application is appropriately in the name of the child rather than a parent or guardian

Where the court considers your client has no basis for their claim and little likelihood of success, it may order your client to find caution for expenses as a condition for continuing with their case.  The court will usually fix an amount for the individual to pay into the court. This money is there to make sure the expenses of an opponent can be met at the conclusion of the case.

We cannot meet the costs of caution if such an order is made. You must tell us if such an order is made and comment on the appropriateness of legal aid continuing.  In such cases, we may terminate the grant. 

Where your client is seeking an appointment as a guardian to an adult with an incapacity or an intervention order in relation to the adult, they may need a bond of caution.  An insurance company will provide this bond subject to payment of a premium, this is usually chargeable against the estate of the adult with incapacity.  This will indemnify that adult against any error or maladministration on the part of the guardian or intervener.  

In situations where the guardian has no fund or estate to draw from it may be appropriate for us to meet the costs of the premium for the bond of caution. 

You should ask for sanction to cover this.  To consider the request, we need:

• Details of the circumstances leading to the appointment of the guardian
• Details of the litigation including any claims that may be made in the litigation
• Sufficient information to show that there are no immediately available funds to meet the costs from any other source.

The Family Law (Scotland) Act 2006  provides rights for cohabitees to financial provision on separation and rights on intestacy. We need to be satisfied that your client can properly be described as a cohabitee of the opponent. Your client needs to show us that the couple are or were living together as if they were husband or wife or civil partners.

We need evidence of:

• Length of the period living together
• Nature of the relationship
• Nature and extent of any financial arrangements during that period.

Your client may apply to the court for a capital sum or an order to pay towards any economic burden of caring for a child of the relationship.  Property transfer orders are not competent. Claims of this type must be made not later than one year after the date of separation.

In deciding whether an award is justified, the court assesses:

• The extent to which your client has suffered economic disadvantage in the interests of the opponent or any relevant child
• Whether the opponent has derived economic advantage from contributions made by your client.

The court also has to consider the extent to which:

• Economic disadvantages suffered by your client have been offset by advantages gained from contributions by the opponent
• Economic advantages gained by the opponent from your client’s contributions have been offset by disadvantages suffered by the opponent in the interests of your client or child.

We need a statement from your client with:

• Sufficient facts to satisfy us that the statutory definition of cohabitee is met and that the qualifying criteria regarding economic advantage/disadvantage are satisfied
• The figure sought and the ability of the opponent to meet an award if made

We also require evidence of a third party statement and/or supporting documentary evidence. If unavailable you must explain why.

Where one of a cohabiting couple dies intestate, your client can apply to the court for an order for a capital sum or transfer of property out of the net intestate estate.

Claims of this type must be made within six months of the death.

In deciding whether an award is justified, the court assesses:

• Size and nature of the estate
• Any benefit to be received by your client in consequence of the death
• Nature and extent of any other rights against or claims on the estate

The court cannot award your client more than they would have received had they been a spouse or civil partner of the deceased.

We need a statement from your client with:

• Sufficient facts to satisfy us that the statutory definition of cohabitee is met and that the couple were still cohabiting at the date of death, addressing the factors which the court has to consider.
• Details of the order sought

We also require a supporting third party statement and/or supporting documentary evidence or an explanation as to why none is available.

Where legal aid is sought to defend proceedings on provisions on separation or intestacy, our evidential requirements are:

• Copy of the writ to be defended
• Statement from your client addressing the pleadings in the writ and giving facts and circumstances that support a position that the statutory requirements for the order sought are not met.
• Supporting third party statement and/or supporting documentary evidence or an explanation as to why none is available.

Where the sheriff appoints a curator ad litem to a child, at the first instance, unless the court directs otherwise, the pursuer is responsible for the curator’s fees and outlays. These can be incurred during the period from the curator’s appointment until:

• They lodge a minute stating that they do not intend to lodge defences or enter the process
• They decide to instruct the lodging of defences or a minute adopting defences already lodged
• Their appointment is discharged before either of the above occurs.

We consider that probable cause will generally be established if the curator shows that they are entitled to enter the proceedings on the child's behalf.  The application should be made in the name of the child and should be clear the person is acting in their capacity as curator ad litem for the child.

To show reasonableness, the application should focus on the need for the child's interests to be separately represented.  It should address such matters as:

• Any conflict of interest which has arisen or might arise between the child and both parents
• Any way in which the views of the child are not identical or broadly similar to one or other parent
• Any undue pressure placed on a child or manipulation of the child by one or other of the parents
• Any open conflict between the parties such that the interests of the child are in danger of being overlooked
• Why the views of the child can only be conveyed to the court by representation as opposed to any other means

Irrespective of the terms of appointment, the statutory tests of probable cause and reasonableness must be addressed and met before a grant can be made.

Our evidential requirements are:

• Copy of the pleadings to date
• Copy of the interlocutor of appointment
• Note by the curator stating why they consider there is a need for separate representation
• Copies of any statements obtained or reports prepared as part of the initial investigations.

Your client must meet the full criteria for defamation. Your client must demonstrate a plausible basis for bringing or defending proceedings.  Among other things, issues such as jurisdiction must be fully addressed.

The factors on reasonableness must be properly addressed and the usual financial eligibility criteria apply

We must be satisfied that there is a wider public interest or that  effective representation is not possible without public funding.

Assessing the question of effective representation

In determining whether we are satisfied that, without public funding your client would be unable to bring or defend proceedings effectively, we have to take into account your client’s (with the assistance of any accompanying person) ability to:

• Consider and challenge any document or information before the court
• Present his or her views and arguments to the court in an effective manner.

A case may be viewed as exceptional if the degree of exceptionality is similar to other cases where the Court of Session, the Supreme Court or the European Court of Human Rights have ruled that the absence of public funding for representation would be a violation of human rights.

Where you consider there is a wider public interest involved you should set out what the interest is and the benefits to the wider community

Where you consider that the effective participation test applies you should explain why your client could not proceed without public funding and provide any relevant supporting information including, where applicable, medical reports.

In permanence order proceedings where there is more than one child involved you only require to submit one application in respect of your client.  In the application you should give details of the child or children who are the subject of any proceedings.

When considering such cases, the child’s welfare is the paramount consideration.

Information that should be provided includes:

• Your client’s statement addressing: arrangements made for the child’s care, benefits for the child, child’s wishes and whether it is appropriate to take them into account, and child’s racial origin and cultural, linguistic and religious background, if appropriate
• Supporting information if available and, if not, an explanation for this
• Copies of any reports including any medical or social work reports.

If your client seeks an adoption order and the natural parent’s consent is to be dispensed with, you should show us that grounds for dispensation exist.

Applications for legal aid to oppose either an adoption order or permanence order will usually be granted because of the importance of the matter to both the child and the natural parents.  These orders change a child’s status for their whole life.

In cases of adoption by a step-parent, where there has been remarriage, only the step-parent need apply.  However, if both parents are adoptive parents then applications from both parties are needed.  Separate applications are needed for each child.

If the person to be adopted is of or over the age of 12 years, his or her consent to the order is necessary and direct evidence of this should be included in the legal aid application.

 The Children (Scotland) Act 1995 gives guidance to the court in considering whether to make an order.  It must have regard to three principles:

• The welfare principle,
• The no-order presumption
• The views of the child.

Where a couple has divorced and one or both seek section 11 orders, this is done by minute in the divorce process even where no section 11 orders were granted at the time of divorce. (See Ordinary Cause Rule 33.44, McEwen v McEwen 2001 SLT (Sh. Ct.) 8, and sections 11 and 42(3) of the Family Law Act 1986).  Ordinary Cause Rule 33.65 makes similar provision for applications after decree in actions which are not actions for divorce.

All legal aid applications for orders relating to parental responsibilities and rights must:

• Address all the above principles
• Address the extent to which there have been negotiations to resolve the dispute
• Address attempts to limit the scope of the dispute between the parties
• Provide details why such these negotiations have failed (including providing copies of any relevant correspondence).
• If the child is subject to a supervision requirement, explain any conditions attached
• Address the practical effect of the order and why it is reasonable to grant legal aid
• Detail if the proposed court order conflicts with other types of order (for example, a child protection order or a parental responsibilities order transferring parental rights and responsibilities to a local authority).

As the welfare of the child is the court’s paramount consideration, your client’s statement must cover:

• Proposed arrangements for looking after the child
• How the proposed proceedings will safeguard or promote the child’s welfare
• Why it is necessary to bring proceedings
• Whether the child has expressed any views on the matter given the court may well consider the child’s views.

The statements provided should focus only on aspects directly linked to the child’s welfare. Issues of dispute, including those concerning the breakdown of any relationship between the parties should not be supplied as support to your client’s position.

Supporting evidence should be produced from:

• An independent witness speaking to the child’s welfare
• If applicable, reports from the Social Work Department, medical practitioner etc.

If no supporting evidence is produced, you should explain why not.

While the welfare of the child is the court’s paramount consideration, a father with parental rights (through marriage, agreement, court order or by registration as father on the birth certificate) generally has a right to contact as established in case law. This means the rights of the father should be balanced against the welfare principle in all applications involving fathers with parental rights. 

Your client should make it clear that residence is in dispute. Information about threats or attempts to remove the children from your client’s care should be given. Details of the parties’ respective parental rights and responsibilities should be given. Details need to be given about all attempts made to settle the dispute without litigation. Any police or social work involvement on this issue should be detailed, including information about any protective orders affecting the child.

If a child is already in the care of your client, we do not need supporting evidence of the arrangements for the child’s welfare, unless, your client’s care of the child is recent or tenuous, or it will alter the status quo. If your client’s child is in the care of the opponent information should be given about the opponent’s ability to care for the child. A supporting statement should be provided from an independent person who can speak to the welfare of the child. If no supporting evidence is available please explain why not.

Defending a residence order

Your client’s statement should:

• Provide details of the current arrangements for the care of the child
• If a child lives with the opponent, set out what criticisms are made of their care and control of the child
• If a child is not living with the opponent, comment on the opponents proposals for caring for the child.
• Draw attention to any factors making it appropriate for the court to make no order at all
• Disclose the child’s views, if known and likely to carry weight.

You client’s statement must:

• Give full details about all attempts made to settle the dispute without litigation (providing copies of any relevant correspondence). Copy correspondence is not needed if we have granted special urgency cover to raise proceedings.
• Address whether mediation has been considered or attempted and details of this (unless we have granted special urgency cover to raise proceedings). This is not needed where there are allegations of domestic abuse.
• Provide information about why any contact offered is not sufficient and action is still needed
• Provide details of the arrangements for the welfare of the child during contact periods
• Show whether any contact is being granted and whether the contact sought is residential or non-residential
• Give details of when contact last took place and how much contact should be expected in future
• Show what attempts have been made to negotiate contact and the result

Your client should provide supporting evidence of the proposed arrangements for the child’s welfare during contact.  This is particularly important if it appears that they may have difficulty in looking after the child.

Where contact is taking place but your client is seeking more contact than likely to be deemed reasonable we will consider the overall reasonableness of the application.

Defending a contact order

Your client’s statement must:

• Specify whether the request for contact is being opposed fully or only in relation to the frequency of the contact sought.
• Explain why the pursuer’s proposals should be opposed
• Explain why contact is not is the child’s best interests
• When opposing contact in its entirety explain why. The prospects for success must be assessed and details about any previous contact and the court’s view on supervised contact should be given.
• Offer the child’s views, if known and likely to carry weight
• Give details of any existing contact arrangement.
• Detail why any previous arrangements for contact may have broken down
• Explain all attempts made to settle the dispute (providing copies of any relevant correspondence entered into between the parties).
• Address whether mediation has been considered or attempted. If it has been attempted, what was the outcome and why litigation is necessary. This is not needed where there are allegations of domestic abuse.

If pursuing contact you should provide supporting evidence of the proposed arrangements for the child’s welfare during contact. This is particularly important if it appears that your client may have difficulty in looking after the child.

If opposing contact you should provide a supporting statement from an independent person who can speak to the welfare of the child. I no supporting evidence is available please explain why not.

Your client’s statement must explain exactly which responsibilities and rights are to be removed.  A statement from an independent witness, or a report from the Social Work Department or medical practitioner, should support this. 

Defending an order removing parental responsibilities and parental rights

Your client’s statement should address why the order sought by the pursuer should be opposed.  The statement should show to what extent parental responsibilities and rights have been exercised until now.

When sought in conjunction with other orders your client’s statement should address why this order is necessary as well as the other(s).  The need for the order should be addressed together with details of attempts made settle matters.

Defending an order imposing parental responsibilities and parental rights

Your client’s statement should:

• Explain why the order should be opposed
• Comment specifically on the pursuer’s averments
• Highlight factors showing why it would be appropriate to make no order
• Give the child’s views, if appropriate.

Your client’s statement should:

• Give details of the order sought
• Address why such an order should be granted with reference to the three principles set out in section 11(7)
• Show the matter in question cannot be dealt with by any other statutory provision

Defending a specific issue order

Your client’s statement should show why the order sought should be opposed with reference to the welfare of the child, the fact that no such order is required and the child’s views, if appropriate.

Supporting evidence from an independent person should be provided. If this is not available, please explain why not.

Your client’s statement should:

• Give details about any change or changes in circumstances which warrant the variation together with details about attempts to resolve issues without litigation
• Address the welfare of the child

A supporting statement or other form of supporting information should be provided together with a copy of the interlocutor to be varied.

Your client’s statement should:

• Give full details of the difficulties that need to be addressed by the court
• Give information about all attempts made to settle matters without the intervention of the court

A supporting statement or other form of supporting information should be provided together with a copy of the order to be obtempered.

Only occasionally will it be reasonable to grant civil legal aid for divorce proceedings in the Court of Session as generally these can be dealt with in the sheriff court.  The inclusion of a large financial claim does not necessarily mean that a case has sufficient complexity for this. Cases justifying Court of Session proceedings should be rare. However, factors we may take into account include:

• Likely cost of Court of Session proceedings compared to sheriff court.
• If the Court of Session is a more reasonable venue because of factors such as the effect of local publicity on the parties, local court policy or jurisdictional issues.

If the parties involved agree the marriage or civil partnership has irretrievably broken down but dispute the cause, defences on the merits and cross actions should not be encouraged. We will not grant legal aid for a cross action of divorce or dissolution of civil partnership where your client is not defending the partner’s action on the merits. If the outcome of ancillary matters is affected, we may consider a cross action reasonable.

The Civil Evidence (Scotland) Act 1988 requires that evidence establishing the grounds of an action of divorce or dissolution of civil partnership must consist of, or include, evidence other than that of the parties in the marriage or civil partnership. We need to see a statement from your client that speaks to the breakdown of the marriage or civil partnership as well as appropriate evidence from a third party.

Interim Gender Recognition Certificate

If the proposed ground for divorce or dissolution is that either party has been issued an interim gender recognition certificate we do not need a statement from a third party to establish the grounds. A copy of the interim gender recognition certificate is sufficient.

We will need the usual supporting third party statements if you are seeking ancillary craves in relation to financial provision and  orders in relation to children or other competent orders.

A bare denial of the pursuer’s averments is rarely satisfactory.  If the pursuer’s averments are specific, your client should be able to answer them in detail. 

A partial denial, even if well supported, is not enough to establish probable cause as if your client admits, even in part, averments that could still give grounds for divorce or dissolution.

• It may be unreasonable to finance a defence on the merits merely to give your client an opportunity of refuting certain allegations they find objectionable.
• If the conduct is admitted, it may be unreasonable to give legal aid for your client to argue that the conduct did not contribute to the breakdown of the marriage or civil partnership or that it has not broken down.

We need:

• A statement from your client denying the factual averments made within the pleadings
• A witness statement that offers support for your client’s version of the marriage or partnership. If unavailable you should give full reasons why.

It must be shown that:

• An immediate divorce or dissolution would bring some direct benefit to your client
• It is reasonable to make legal aid available immediately rather than waiting for the appropriate period of separation to elapse.

 Examples of situations where your client may benefit from divorce or dissolution on a fault-based ground, despite the absence of ancillary craves, include:

• Where all ancillary contentious matters have been settled by agreement and both parties want to resolve matters as soon as possible.
• Where your client wants to remarry or enter a new civil partnership.
• Where your client is suffering from harassment or emotional pressure from the estranged spouse or civil partner

We will consider any reason put forward by your client who wants to proceed with an immediate divorce or dissolution.

You should make it clear that your client is not able to raise an action of divorce or dissolution under the simplified procedure.

If your client is seeking divorce based on one year’s separation and there are no ancillary craves, we do not need to see statements, other evidence or letters of consent.  Instead, select the box confirming there is support for the period of separation and consent from the opponent to the action when completing the application.

Since it is incompetent for the court to pronounce decree of divorce or dissolution where the defender withdraws their consent, we will not consider any applications to defend.

You should make it clear that your client is not able to raise an action of divorce or dissolution under the simplified procedure.

If your client is seeking divorce based on two years separation and there are no ancillary craves, we do not need to see statements or other evidence.  Instead, select the box confirming there is support for the period of separation when completing the application.

A defence can be taken on the ground that the parties have not been separated for two years.  You should include a supporting statement confirming the actual date and duration of separation.

Irretrievable breakdown is established if the defender has ever behaved in such a way that the pursuer cannot reasonably be expected to cohabit with him or her.  If your client is not seeking ancillary craves, they will need to show there is a direct benefit from an immediate action of divorce or dissolution as opposed to waiting for the relevant period of separation to elapse.

Our evidential requirements are:

• Statement from your client showing the marriage or civil partnership has broken down as a direct result of the opponent’s behaviour and it is unreasonable to be expected to continue to co-habit.
• Evidence of unreasonable behaviour from a third party which could consist of:.
• A statement of a witness that speaks to the behaviour complained of directly
• A statement from witness that lends colour to a detailed statement of your client may be acceptable, even if it does not corroborate the worst part of the behaviour complained of. 
• In cases involving domestic violence, a statement from a witness confirming your client’s allegations of violence or confirm seeing evidence of bruising/visible bodily harm would be helpful.

Such statements should clearly note which aspects are hearsay and which they have witnessed.

If there is no other evidence available a medical report may be needed.  To be of evidential value, it should refer to physical/ mental health treatment needed by your client arising from suffering inflicted by the opponent.

If defending an action, a statement from your client detailing the pursuer’s specific averments of behaviour, and a supporting statement should be provided.

In the case of divorce actions, we need a statement from your client showing the marriage has broken down irretrievably because of adultery.

Evidence of adultery, from a third party, must also be provided.  Examples of such evidence are:

• A report by an enquiry agent on observations showing, for example, familiarities, association, cohabitation, overnight visiting. (A single enquiry agent’s evidence will normally be sufficient.)
• Evidence of witnesses speaking to affectionate familiarity between the defender and paramour.
• Evidence of children of the parties on contact visits.
• The wife having a child by another man. We would require evidence that the husband was not or could not be the father.
• Another woman having a child by the husband. We require some form of evidence of this such as a birth certificate of the child in question showing the defender’s name as father or a statement from someone who can speak to the circumstances of the birth.
• Admissions (in the form of statements or letters) by both the opponent and the paramour.

In a civil partnership, adultery is not a ground of dissolution so we will not grant legal aid to pursue actions of dissolution based on adultery.

In the case of divorce actions, we need a statement from your client answering the averments and a supporting statement from a witness.  If no supporting evidence is available then provide a detailed explanation for this.  If the adultery allegedly took place with a named individual, you should produce a statement from that person which supports your client’s denials.

Adultery is not a ground of dissolution of a civil partnership so it is unlikely you will have to defend such an action.

You should make it clear that your client is not able to raise an action of divorce or dissolution under the simplified procedure.

Our evidential requirements are:

• A statement from your client setting out details of the date of marriage or civil partnership, showing that an interim gender recognition certificate has been issued to either party since then and that your client is seeking a divorce or dissolution as a result, and setting out the position relating to children, ancillary orders etc.
• A copy of the interim gender recognition certificate. We do not need a third party statement here. We consider the interim certificate sufficient but if there are ancillary craves for financial provision or in relation to children you should provide the usual supporting statements.

A defence can be taken on the ground that an interim gender recognition certificate has not been issued.

Our evidential requirements are:

• Your client’s statement explaining why they believe an interim gender recognition certificate is absent or is not a valid certificate
• A letter from the Gender Recognition Panel named on the certificate commenting on whether the certificate is genuine.

Before granting civil legal aid, we need to be satisfied that matrimonial or partnership property exists to satisfy the orders for financial provision sought.

All applications should include:

• Information on the orders being sought
• Any details your client has or knows about the matrimonial or partnership property and debts
• Any vouching or supporting documentation that may be available for the matrimonial or partnership property and debts.

Where no such information is available, your client’s statement must explain why.

Applications should include:

• A schedule of matrimonial or partnership assets and debts.
• Proof that the claim for financial provision is made in relation to a divorce or dissolution of civil partnership or an action of nullity.
• Any vouching that is available (if there is insufficient time to get such documentation you should explain why).
• Details of the relevant date (the date on which the parties stopped cohabiting).
• Where orders are to be opposed, a copy of the writ showing the orders sought by the opponent.
• Details of the nature and value of the matrimonial or partnership property at the relevant date and details of the relevant debt.
• An explanation to show the order being sought is reasonable having regard to the relevant resources of each party.

An order for payment of a capital sum relates to a specified sum of money paid in instalments or a lump sum.  Additional information that should be provided in support of such a claim includes:

• Details of the matrimonial assets and debts to show why the order is reasonable, and information about the property from which the order will be satisfied.

Additional information that should be provided in support of an application for a transfer of property order:

• Details of the need for consent of a third party or the likelihood of getting it.
• Details of the property for which the order is sought.
• Supporting information showing there is property for which an order can be sought.

Additional information that should be provided in support of a periodical allowance order:

• Information showing the order is justified.
• Details of your client’s and their opponent’s financial position.
• Supporting information from a third party about the opponent’s financial position, if available.

Additional information that should be provided in support of any request for an earmarking order includes:

• Details of the capital sum for which legal aid is being sought or a statement that your client is already receiving legal aid to pursue a capital sum order.
• Details of the rights or interests that the opponent has, or may have, in benefits in the pension.
• A statement that those benefits include a lump sum payable to the opponent on retirement or death.
• Supporting information showing the existence of the opponent’s pension interests.

An incidental order includes orders such as:

• Sale of the matrimonial or civil partnership home
• The valuation of property
• Determining any dispute between the parties to the marriage about their respective property rights by means of a declarator

Additional information that needs to be produced in support of such an order:

• Information about the nature of the incidental order being sought
• Information showing there is a need for such an incidental order

Information to show the incidental order is reasonable having regard to the relative resources of the parties.

Additional information that should be provided to support a claim includes:

• Your client’s statement.
• Details explaining why a pension sharing order is needed and vouching of the value of the pension.
• If no vouching is available, enough information about the potential value of the rights that can be apportioned to the period of the marriage, to satisfy us the sums are large enough to justify seeking a pension sharing order.

Where the value of a pension is £5,000 or less – it is unlikely to be reasonable to grant legal aid to pursue an order because the overall costs involved would be disproportionate.

Such an inquiry should be progressed expeditiously and efficiently. We will prioritise applications for Fatal Accident Inquiries and help you with them if needed. To do this, we need you and your client’s assistance.

Tell your client about the availability of civil legal aid and begin the process as soon as possible so that the application is ready to be submitted after the First Notice is received.

At the preliminary hearing, the sheriff will expect to hear from you about the progress that has been made with regard to applying for civil legal aid and on occasion from us. Remind your client of the need to provide all necessary financial information as promptly as possible to speed along the assessment.

If more than one member of a family is applying for legal aid you need to explain why this is necessary. This applies to all FAI’s including deaths in custody where you know that requests for such representation will be made.

Statutory test: probable cause

Probable cause is established if your client falls within the category of ‘persons entitled to be represented’, at the Fatal Accident Inquiry, as a relative of the deceased or as a potential defender.

Statutory test: reasonableness

If your client is the relative of a person who died in prison or police custody we will look favourably on the application (subject to there not being more than one request from a family member).  It is appropriate for relatives to have their own independent representation at the inquiry to determine the facts.

Statutory test: probable cause

We consider that probable cause can be established if your client falls within the category of persons entitled to be notified of a Fatal Accident.

Statutory test: reasonableness

To allow us to assess whether the test of reasonableness is met you should tell us:

• Why you think your client needs separate legal representation at the inquiry, in addition to the role of the Crown
• Any potential areas of dispute with the Crown in relation to the approach taken to the inquiry or the evidence to be led
• Any areas of concern in relation to any other party involved in the inquiry that might result in the need for representation
• Any areas of inquiry your client wants to pursue which will not be addressed by the Crown or should be pursued in a different way
• Why you consider these different areas of inquiry are appropriate and reasonable to be taken forward at the inquiry
• Any other relevant factors

In some cases, we may need to see copies of the correspondence you have had with the Crown or, through you, request that specific points are clarified by them.

We will not consider the test of reasonableness to be met where your client is seeking representation to identify and gather information that might support a reparation claim.

You should provide information focussed on issues such as whether your client requires representation to protect their legal position against self-incrimination or avoiding any further proceedings.

The Gender Recognition Act 2004 allows people over eighteen to apply to a Gender Recognition Panel for a gender recognition certificate. The effect is that their legal gender becomes the gender indicated in the certificate.

To grant a certificate, the Panel must be satisfied that your client:

• Lives as the intended new gender (and has done so for two years, intends to do so until death)
• Has suffered gender dysphoria
• Is able to provide medical reports supporting this

If your client is single then the certificate, if granted, will be a full certificate that immediately changes their gender.

If your client is married or a party to a civil partnership, the certificate will be an interim certificate.  The issue of an interim certificate provides a ground for divorce or dissolution for either party to the marriage or civil partnership, and if this occurs, the court granting will issue a full certificate.

A full gender recognition certificate issued by a court on granting decree of divorce or dissolution may contain errors.  If so, you can apply by minute to the court that issued the full certificate for correction.

Our evidential requirements are:

• Statement from your client addressing the nature of the errors, the proposed corrections and the reasons why these are warranted and necessary
• Copy of the erroneous gender recognition certificate
• Supporting witness statement and/or documentary evidence, or an explanation as to why none is available.

Your client may appeal on a point of law to the Court of Session against a decision by a Gender Recognition Panel to reject the application.

Our evidential requirements are:

• A statement from your client addressing the practical implications for them of the refusal
• Copy of the reasons for refusal
• Copies of supporting materials
• Note on prospects from you.

Where the disposition or devolution of any property under a will or other instrument is different from what it would be had a person’s gender not become the acquired gender under the Act, they may apply to the Court of Session for an order on the ground of being adversely affected by the different disposition or devolution of the property. The court may make an order it considers appropriate including payment of a lump sum, transfer of property, settlement of property or acquisition of property and transfer of it to your client.

Our evidential requirements are:

• Your client’s statement addressing what they stood to gain before the change in gender, compared to the situation after, and an explanation of the orders sought with details of why those are justified
• Supporting witness statement and/or documentary evidence, or an explanation as to why none is available
• Copy of the gender recognition certificate
• Copy of the will or instrument

To establish probable cause there must be evidence:

• Of a continuing or threatened wrong capable of being the subject of an interdict
• That your client has a reasonable apprehension of a repetition of the conduct complained of.

It should not be assumed that we would be bound to grant the application just because:

• A sheriff has granted an interim interdict.
• The police have been involved and have advised your client to see you about going to court for an interdict.

Minor Disputes

One of the factors we will consider is whether a privately funded litigant of moderate but not abundant means would raise such an action. An example would be a dispute between neighbours, which involves a series of fairly minor incidents which are not violent.  In such a case, your client must specifically address why it is considered reasonable to make public funds available.  You must address in detail the basis of your client’s fear that some physical action will follow on the threats.

Police Involvement

The involvement of the police in a dispute will be relevant. If your client did not involve the police, they must explain why not.  If they considered the matter was too minor to trouble the police, there will need to be a strong argument for seeking public funds to finance an action of interdict.

Where police have attended and taken no action this might, on the face of it, indicate that the conduct is minor. Where criminal proceedings have been taken, your client will have to address why a civil remedy is still needed. Details of any police action should be included together with why your client still requires an interdict.

Dispute Resolution

Your client should try any other avenues of dispute resolution before applying for legal aid.  If alternatives have not been investigated, your client must show why it is reasonable to proceed with a court action.

Evidential requirements

Your client’s statement must detail:

• The conduct for which the interdict is sought and why they believe that it will continue
• The actual or expected effect of the conduct on your client
• The terms of the interdict sought
• Date of any specific incidents
• Any involvement of other parties in resolving the dispute.

It should be clear all others steps have been taken including solicitors’ warning letters and involvement of the police.

Supporting evidence should be produced, such as:

• A statement from another individual who has witnessed some or all the conduct complained of or who has witnessed your client’s distress or injuries
• A statement from an agency such as a Social Work Department or police confirming the existence of the conduct complained
• A report from a doctor.
• Copies of correspondence with you about the conduct complained of

To satisfy us on probable cause, we will expect your client to provide a full answer to all the pursuer's averments with a clear explanation why the interdict must be resisted.

Where your client denies particularly serious conduct the test of reasonableness may readily be satisfied.

If conduct complained of is fairly minor, or the terms of the interdict narrow, the question of reasonableness must be addressed in some detail – would a private client of moderate but not abundant means incur the cost of a defence in these circumstances?

If your client fears the terms of an interdict would unreasonably interfere with the exercise of parental responsibilities, such as contact, it may be reasonable to allow legal aid for a defence.

If your client believes the pursuer is likely, through malice, to misuse the decree by bringing unwarranted actions for breach of interdict, they should address why they believe this.

In some cases, your client may not believe the interdict sought is justified but would be prepared to live with its terms were it not for the prospect of incurring unrestricted liability for the pursuer’s expenses.  If, in these circumstances, they are seeking to defend the interdict we should be given details of the steps that have been taken to reach agreement about expenses.

Evidential requirements

Your client’s statement should:

• Clearly state if they deny the pursuer’s allegations in whole or in part and explain the nature and extent of the defence
• Explain fully how they will be affected by an order in the terms sought.

Supporting evidence should be produced, especially about any assertion that there is a real likelihood that the opponent will abuse the terms of the order sought. A copy of the initial writ seeking the interdict(s) should be provided.

A “matrimonial interdict” denotes an interdict that:

• Restrains or prohibits conduct of one spouse towards the other spouse or a child of the family
• Prohibits a spouse from entering a matrimonial home, any other residence occupied by your client, your client’s work place and any school attended by a child in the care of your client or their spouse.

A “domestic interdict” denotes an interdict which is the same as a “matrimonial” interdict’ but is available where the parties are cohabitees.

A “relevant interdict”, denotes an interdict, which is the same as a “matrimonial interdict” available where the parties are civil partners.

A power of arrest may be attached to these types of interdict.

Evidential requirements

Your client’s statement should:

• Provide specific details of the conduct complained of and indicate that, unless interdict is granted, they are likely to be exposed to conduct which would put them at risk or in fear, alarm or distress
• Give the date of any specific incidents.

It should also be shown that all other steps have been taken and that court action is therefore necessary.  Other steps can include:

• Solicitors’ warning letters
• Involvement of the police

Supporting evidence can include:

• A statement from another individual who has witnessed some or all the conduct complained of or who has witnessed your client’s distress
• A statement from an agency such as a Social Work Department or police confirming the existence of the conduct complained of
• A report by a doctor

Your client’s statement should explain in detail why it is considered necessary to oppose the order(s) in question.  If the order(s) sought would not prevent any lawful act by your client, we are unlikely to grant legal aid to defend it unless some other good reason is shown. 

Supporting evidence should be produced, especially in relation to any assertion that there is a real likelihood the opponent will abuse the terms of the order sought.  If no supporting evidence is available, you should explain why not.

A copy of the initial writ seeking the interdict should be provided.

Such actions are fresh proceedings so a fresh civil application is needed.

Your client must establish probable cause. Factors we will consider to address reasonableness include:

• Seriousness and degree of the breach
• The result of the alleged breach and the likelihood of reoccurrence

Evidential requirements

Your client’s statement must:

• Deal in detail with the nature of the alleged breach and its practical result
• Provide the date of the breach

Comment on the likelihood of the interdict being breached again

Supporting evidence should be produced such as

• a statement from someone who witnessed the breach, or your client’s distress. If none is available, you should explain why not.
• A letter from the procurator fiscal confirming that they concur in the raising of the proposed action.
• A copy of the (interim) interdict along with a certificate of execution of service to confirm that it has been served on the opponent.

To establish probable cause, we will expect your client to provide a full answer to the pursuer’s averments with a clear explanation why the breach of interdict must be defended.  Sufficient information must be produced to show the alleged breach did not take place and that it would therefore be reasonable to defend the action.

Our evidential requirements are:

• Your client’s statement making it clear whether they deny the pursuer’s allegations in whole or in part and explain the nature and extent of the defence.
• Supporting evidence. If no supporting evidence is available, you should specifically indicate this and explain why not.
• A copy of the (interim) interdict should be produced.
• A copy of the initial writ or minute should be produced.

The Protection from Abuse (Scotland) Act 2001 makes it possible for person applying for, or who has obtained, an interdict to apply to the court to attach a power of arrest.

A power of arrest can only be attached where it is necessary to protect your client from the risk of abuse. We will consider the degree of likely harm.

Where your client is applying for an interdict, they must specify in the statutory statement if they are also seeking a power of arrest.

If your client wants to defend an initial writ seeking an interdict and power of arrest simultaneously and has shown probable cause to defend the interdict and that it is reasonable to grant legal aid to do so this is enough for probable cause and reasonableness to defend the power of arrest.  Your client’s statement does not need to address this further.

Our evidential requirements are:

• If an interdict is being sought simultaneously, we expect your client to state in their statutory statement that they seek to defend the power of arrest in addition to the interdict sought.
• If a power of arrest is being sought in relation to an interdict previously granted, your client’s statement should address in detail why it is necessary and reasonable to defend the power of arrest
• Supporting evidence should be produced, especially about any assertion made that there is a real likelihood the opponent will abuse any power of arrest now sought.
• A copy of the initial writ seeking the power of arrest (and interdict, if applicable) should be produced.

Protection from Harassment Act 1997 makes provision for protecting people from harassment and similar conduct.  The Domestic Abuse (Scotland) Act 2011 applies where the conduct leading to a pursuer bringing the action of harassment amounts to domestic abuse.

An actual or apprehended breach may be the subject of an “action of harassment” claim in civil proceedings by a person who is, or may be, a victim of the course of conduct in question.

The remedy sought in an action of harassment may include:

• An award of damages
• Grant of an interdict or interim interdict
• A “non-harassment order” requiring the defender to refrain from such conduct in relation to the pursuer.

Your client may seek legal aid to apply for (or defend) both interdict and a non-harassment order in the same terms.  This allows the court to grant whichever seems appropriate.

Where an action of harassment includes a claim for an award of damages, it may only be brought if it is commenced within three years after:

• The date on which the alleged harassment ceased
• The later date on which the pursuer became aware that the defender was the person responsible for the alleged harassment, or the employer or principal of such a person.

This three-year period does not include any time during which the victim of the alleged harassment was under legal disability.  Where the three-year period has expired if it seems equitable to do so, the court may allow action to be brought.

Evidential requirements

Your client’s statement should give:

• Specific details of the nature of the conduct complained of
• Detailed confirmation that the course of conduct complained of occurred on at least two occasions or why the conduct complained of amounts to domestic abuse
• The date of any specific incidents.
• Details of the remedies sought in the action for harassment

Where an award of damages is sought, it should be within the time limit.  If the time limit has expired, your client must provide full details that will be presented to the court to persuade it that allowing the action to proceed would be equitable.

Supporting evidence should be produced about the conduct. This can include:

• A statement from a witness to the conduct complained of or who has witnessed your client’s distress
• A statement from an agency such as a Social Work Department or police confirming the existence of the conduct complained of
• A report from a doctor.

Evidential requirements

Your client’s statement should make it clear whether they deny the pursuer’s allegations in whole or in part and explain the nature and extent of the defence to be advanced.

Three statutory defences are that the conduct complained of was:

• Authorised by, under or by virtue of, any enactment or rule of law
• Pursued for the purpose of preventing or detecting crime
• In the particular circumstances, reasonable.

Supporting evidence from a third party about the defence should also be produced or an explanation why this is not available.

A copy of the initial writ seeking the non-harassment order should be provided.

The person against whom a non-harassment order has been made may apply to the court for revocation or variation of the order.  A fresh civil application must be made for this.

The minuter must produce: 

• Full details of the justification for revocation or variation
• Supporting evidence about this or an explanation why it is not available
• A copy of the interlocutor granting the non-harassment order

The defender must produce:

• Full details and reasons why it is appropriate to defend such an application
• Supporting evidence about this or an explanation why it is not available
• A copy of the minute to revoke or vary the existing order
• A copy of the interlocutor granting the non-harassment order.

A petition for judicial review needs to be lodged within three months of the date of the decision/omission/action to the supervisory jurisdiction of the Court.  As the Rules of the Court of Session allow for twenty eight day sist for legal aid you should lodge your client’s application as soon as possible so we can assess it before the expiry of the time limit.

It is not reasonable to grant legal aid where no attempts have been made to resolve matters extra-judicially.      There should be some attempts to resolve matters by negotiation.

Minimum requirements where the petition has not been lodged when the application is made:

• A precognition from you client detailing their interest in the judicial review and any other factors which might impact on the reasonableness of a grant of legal aid, prospects of success, etc.
• Date of the decision, action or omission and the date of expiry of the normal time-bar period
• A copy of the decision, action or omission being challenged with any relevant documents
• A summary of the grounds to which the decision, action or omission is susceptible to judicial review

Minimum requirements where the petition has been lodged prior to the application being made:

• A precognition of your client as above
• A copy of the petition
• A copy of all relevant documents lodged with the petition
• Any affidavit that would otherwise be required (where the decision, act or omission subject to challenge is not apparent from the papers)
• Copies of the interlocutors including, where relevant, written reasons

You have to satisfy us that there is probable cause to litigate and that it is reasonable to grant legal aid in exactly the same way as you would for any other decision-making public body. The minimum requirements apply equally to applications against us.  

Where we initially refuse legal aid and you apply for a review it is considered by our Legal Service Cases Committee (“LSCC”) which comprises SLAB members, co-opted members who are experienced legal practitioners and senior SLAB officials.   Unless the LSCC grants the review, it is referred to the Sheriff of Lothian & Borders at Edinburgh in terms of section 14(4) of the Legal Aid (Scotland) Act 1986.

Where the application is referred to the Sheriff, the application papers together with any observations made by your client and us are sent to the court.   The sheriff decides the merits of the application. The sheriff’s decision is final.

Where the sheriff directs that legal aid is to be made available then, subject to your client being financially eligible, we will grant the application.

We, as an opponent, are no different from any other situation although we will and could not, make representations to ourselves.

We encourage dialogue with your client to see if the matter can be resolved.    We recognise that mistakes in decision-making can occur and welcome any opportunity to put that right.  As with any other opponent, it is open to us to review the challenge to the original decision and if this case has merit.  We may discuss with you whether, as a matter of agreement, an application or decision can be re-opened for the purpose of a fresh consideration.

Where this is agreed:

• We may consider the original application afresh
• We may grant your client’s application, or again refuse it, whether for the same or different reasons.

While you need not agree to this approach a failure to participate in extra-judicial discussions which could or would resolved an issue without the need for court proceedings may have a bearing on the reasonableness of a grant of legal aid.

Your client’s statement should provide details of:

• Reasons for seeking division or sale
• The property concerned
• Co-proprietors
• Benefit to your client if the order is granted.

Supporting information should include: 

• Evidence of joint ownership – for example, a copy of the title deeds or mortgage statement
• Evidence of the opponent’s unwillingness to agree to division or sale.

In actions involving spouses or civil partners the court may refuse to grant an order for division and sale or postpone an order for as long as it considers reasonable.  These provisions cannot be invoked after the dissolution of the marriage or civil partnership. 

In such cases the information provided must show the marriage or civil partnership is still in existence and provide details of:

• The conduct of the spouses or civil partners and their needs and resources
• The needs of any child of the family
• Any business use made of the home and
• Whether suitable alternative accommodation has been offered.

To establish probable cause there must be evidence that your client is either:

• Married to, or is a civil partner of, the person they are seeking to exclude.
• A cohabitee who has or is seeking in the same proceedings a declarator of occupancy rights or is an entitled cohabitee or permitted to occupy the home by a third party

You need to show that such an order is necessary to protect your client or a child of the family from the opponent’s conduct which is or would be injurious to physical or mental health.

We will take into account:

• The conduct of the parties towards each other
• Their respective needs and financial resources
• The needs of any child of the parties
• The extent to which the home and furnishings are connected with a trade, business or profession of either party
• If the entitled spouse, civil partner or cohabitee offers or has offered to make available any suitable alternative accommodation
• where the home is, or is part of, an agricultural holding or is let, or is a home where possession is given to the non-applicant spouse, civil partner or cohabitee or to both spouses, civil partners or cohabitees by an employer as an incident of employment subject to a requirement of residence, that requirement and the likely consequences of the exclusion of the opponent from the home.

 Your client’s statement must:

• Address whether they are an entitled spouse, civil partner or cohabitee or permitted to live in the home by a third party
• Confirm, if they are a non-entitled spouse or civil partner that the opponent is their entitled spouse or civil partner
• Confirm, if they are a non-entitled cohabitee, that they have, or are seeking in the same proceedings, a declarator of occupancy rights
• Address why such an order is thought necessary to your client and/or a child or children of the family from conduct of the opponent
• Give details of this conduct
• Show that all other steps have been taken or are inappropriate in this case and the necessity of court action.

Supporting evidence can include:

• A statement from third party witness. Such statements should make clear which incidents the witness has directly witnessed and which incidents are hearsay.
• A statement from an agency such as the Social Work Department or police confirming the conduct complained of
• A report from a doctor, health visitor etc.

If enough evidence has been provided for an exclusion order, your client does not need to give any further information where the following additional remedies are requested:

• An interdict prohibiting the opponent from entering the home
• Warrant for summary ejection of the opponent
• An interdict prohibiting the removal by the opponent of furniture and plenishings
• An interdict prohibiting the opponent entering or remaining in the vicinity of the home.

To satisfy us on probable cause we expect your client to: 

• Provide a full answer to all the pursuer’s averments, with a clear explanation why the order must be defended
• Show that an exclusion order is unjustified or unreasonable in all the circumstances of the case and address the factors listed

Where your client denies particularly serious conduct or threatened or reasonably apprehended conduct and/or has no alternative accommodation, the test of reasonableness may readily be satisfied.

Your client’s statement should:

• Make it clear if they deny the allegations about conduct in whole or in part and explain the nature and extent of the defence.
• Explain fully how the exclusion order will affect them

 You should produce supporting evidence, such as a statement by a third party.  If it is not available, explain why not.  You should produce a copy of the initial writ or counterclaim seeking the exclusion order.

If you produce sufficient evidence, to defend the exclusion order sought you do not need to provide further information on other ancillary orders, such as:

• An interdict prohibiting your client from entering the home
• A warrant for summary ejection
• An interdict prohibiting your client from removing furniture and possessions
• An interdict prohibiting your client from entering or remaining in the vicinity of the home

Your client may oppose an action to repossess property on the grounds that:

• The arrears are not due
• Pre-action requirements have not been complied with
• It is not reasonable for the court to grant the order

The Home Owner and Debtor Protection (Scotland) Act 2010 introduced steps a lender must take before starting any court action.  If the lender does not take these steps the application for repossession will not be valid.

The pre-action requirements are that the lender must:

• Provide clear information about the amount due to the lender, any arrears, charges or other obligations
• Make reasonable efforts to agree a way out of any default
• Not take action against debtors if the debtors are themselves taking action which is likely to remedy any default
• Provide information about sources of advice to debtors
• Regard to any guidance that may be issued by the Scottish Ministers on pre-action requirements.

You must send us a statement from your client that explains in detail:

• The background circumstances to the action including steps taken by the creditor by way of pre-action requirements
• any defence to be offered if they claim no arrears are due
• why it is not considered reasonable for the court to grant an order

We also require a copy of the application to the court, a supporting statement or supporting documentation. If these are not available, please explain why not.

Proceedings relating to private tenancies will be heard in the First-tier Tribunal for Scotland (Housing and Property Chamber).  Importantly, this affects proceedings for eviction in relation to most private sector tenancies in Scotland, which were formerly within the jurisdiction of the sheriff court.

Civil legal aid is potentially available for these proceedings. Legal aid may be available to both landlords and tenants subject to eligibility tests. As well as financial eligibility, your client must satisfy the statutory tests of there being probable cause and that it is reasonable in all the circumstances that legal aid is granted.

As a minimum we will require the following:

• Statement from you client
• Supporting statement from a third party, such as a friend or family member, or other evidence which supports your client, or an explanation for its absence
• Copy of the application to the tribunal being opposed
• Evidence of any negotiations which have taken place, together with details of the outcome, or an explanation for its absence

Your client’s statement must include the following:

• Comments on any issues raised in the application to the tribunal, and details of your client’s proposed opposition
• Implications for your client of the proposed order
• Information to show why your client requires legal representation
• If the case value is £3000 or less, information to show why it is considered reasonable for legal aid to be made available notwithstanding the comparatively low value of the claim.

A grant of legal aid for the proceedings will cover the cost of any review of a decision of the First- tier Tribunal made by either party.

If your client wants permission to appeal to the Upper Tribunal, or is opposing, such an application this will be covered under a grant of legal aid for the First-tier proceedings. 

If the First-tier Tribunal refuses permission and the application needs to be renewed to the Upper Tribunal, a fresh legal aid application is required.  Special urgency cover can be obtained to initiate an appeal without our prior approval.

If permission to appeal is refused, then the application can be abandoned, and this will allow payment of any account for work carried out under the special urgency provisions.

Our procedure

We consider the application to decide if the statutory tests of probable cause and reasonableness are met.

The decision maker will have regard to our guidance on the reasonableness test and if the information set out above has been provided we should have sufficient information to decide whether it is reasonable for legal aid to be granted.

We will generally consider that the reasonableness test is satisfied in rent arrears cases where there is information provided that your client is at risk of losing their home and other factors that would show it is unreasonable to evict your client such as:

• Evidence that they are vulnerable, or reside with young children, or adults for whom they care
• Information to show that there are good reasons for arrears building up, such as issues with their claim for housing benefit/universal credit

Your client will need to provide detailed information in cases where repossession proceedings have been raised against your client as a result of:

• Anti -social behaviour
• Criminal activity within the tenancy
• Failure by them to maintain the property in decent order

Your client will need to state their defence to the written representations of the landlord and provide an explanation which could persuade the Tribunal that it is reasonable to allow the tenancy to continue.

Where the only matter is a monetary claim of less than £3000 then information is needed to show why it is reasonable for legal aid to be made available despite the comparatively low value of the claim.

If your application is refused you can submit a review application.   

Legal aid is potentially available for actions for recovery of possession of heritable property arising from the following tenancies and occupancy agreements:

• A regulated tenancy within the meaning of section 8 of the Rent (Scotland) Act 1984 (c.58)),
• a Part VII contract within the meaning of section 63 of that Act,
• an assured tenancy within the meaning of section 12 of the Housing (Scotland) Act 1988 (c.43).
• a private residential tenancy within the meaning of section 1 of the Private Housing (Tenancies) Act 2016

Any actions arising from the Rent (Scotland) Act 1984 including:

• Application to determine the statutory tenant after the death of a protected tenant.
• Application for the apportionment of the rateable value in relation to a protected tenancy
• Application for compensation for misrepresentation or concealment by landlord
• Application to adjust recoverable rent
• Application to amend a rent increase notice
• Application to rectify a rent book
• Application to determine the rent limit
• Application for apportionment of the rateable value in relation to a Part VII contract
• Application to modify a tenant’s right to shared accommodation
• Application to reduce period of notice to quit of postpone date of possession in relation to Part VII Contract.
• Application to recover unlawful premiums

Any actions arising from the Housing (Scotland) Act 1988 including:

• Application to determine removal expenses
• Application to provide a written tenancy agreement and rent book
• Application for damages for unlawful eviction

Any actions arising from the Housing (Scotland) Act 2006:

• Application to contract out of the repairing standard
• Application to order a person to cease obstructing a person from complying with the Repairing Standard
• Application to appeal the decision of a landlord in relation to adapting a rented house for a disabled person.

Any actions arising from the Private Housing (Tenancies)(Scotland) Act 2016 including:

• Application to draw up terms of tenancy
• Application for payment order where landlord has failed to provide information
• Application to appeal rent set by the rent officer
• Application for a wrongful termination order

Fees are chargeable as per Schedule 2A Fees Allowable to Solicitors for Simple Procedure Cases and First-Tier Tribunal for Scotland Cases which can be found by using the following link:

Counsel’s fees are chargeable for Proceedings in the Sheriff Court, First-Tier Tribunal for Scotland, Sheriff Appeal Court and Upper Tribunal for Scotland.

Work undertaken in relation to Proceeds of Crime may involve either criminal or civil legal assistance.

Proceedings brought against an individual are civil in nature where they concern:

• Seizure
• Forfeiture
• Administration
• Recovery of assets
• Freeing from restraint order

These proceedings take place in either the Court of Session or the Sheriff Court.  Initially, you can grant civil advice and assistance and your client may wish to apply for civil legal aid for any court proceedings.

Confiscation Proceedings

If confiscation proceedings are being brought against your client this can be done under any existing grant of criminal legal aid.  The confiscation is treated as part of the sentencing process.

Where solemn and summary criminal legal aid was in place for the trial, the same grant of legal aid remains in force. 

Exceptional Status

In cases where the grant of legal aid is subject to fixed fees, an application for exceptional status can be submitted to allow the payment regime to change help cover the additional work required.

ABWOR

If criminal ABWOR had been made available, an increase in authorised expenditure can be submitted. This can only cover any outlays required for these confiscation proceedings, as there is no facility in ABWOR cases for solicitors to be paid more than the disposal fee.

If no summary or solemn criminal legal aid was in place for the trial, then a new application can be submitted for the confiscation proceedings. We will apply the undue hardship and interests of justice tests in solemn criminal legal aid.

If we granted sanction to employ counsel at the original trial, this will not automatically carry over to the confiscation proceedings.  If counsel is required, then a new application needs to be made for this.

Where your client was either not convicted or was never an accused person, advice and assistance may be available to help with the proceedings.  If your client is not financially eligible for advice and assistance they will need to pay privately in respect of the confiscation proceedings. 

The usual financial tests apply to these cases as any other cases.  Any funds released by the Crown in civil recovery proceedings are disregarded by us when carrying out the financial assessment.

In assessing reasonableness, a number of factors will be taken into account including:

• Value of the claim
• Prospects of recovery
• Attempts made to negotiate settlement of the claim without referral to court.

Evidential requirements – pursuer applications

General evidential requirements for reparation should include a statement from your client giving details of the circumstances that resulted in the injury or loss.

The statement should:

• Give a clear picture of what happened, where and when
• Include details of your client’s title to sue and describe any duties of care owed by the opponent whether in common law or by statute
• Give full details of any prior complaints about the practices or hazards that led to the injury
• Give details of the loss or injury suffered, with an estimation of the damages sought
• Give information about when your client became aware that they were justified to raise the action
• Information about the steps taken to negotiate the claim and to settle without raising court proceedings.
• Give about the prospects of recovery in the case.
• Give details of earnings before and after the accident with information about time spent off work
• Supply any information about your client’s future employability, restrictions on their domestic or social life and details of dependency on, or services received from, others.

Supporting evidence should include:

• Any photographs and sketches of the hazard.
• Any medical reports in cases involving personal injuries.
• Any expert reports that have been obtained showing liability or causation.
• All relevant ancillary documents such as wage certificates, contracts, police reports or receipts.

Evidential requirements – defender applications

We always need:

• More than a bare denial of the claims being made. Where your client is opposing an action on the grounds that there is no liability or the sum sought is excessive, each line of defence should be adequately specified. 
• A statement answering the averments in detail, particularly where liability is being denied, explaining why level of damages is being challenged and setting out why your client is not covered by third-party insurance (road traffic only).
• Any available photographs or sketches.
• Supporting information if available. If not, an explanation should be given.

If your client wishes to make a counterclaim, the evidential requirements for the counterclaim will be the same as those in pursuer applications.

Additional information that should be provided for claims arising from road traffic accidents:

• Information about any police investigations and the final outcome of these
• A report from a road traffic reconstruction expert where appropriate.

Uninsured drivers

An application to defend a reparation action arising from a road traffic accident where the defender was an uninsured driver raises issues on reasonableness.  Your client was under a legal obligation to carry, at least, third-party insurance.  It may be unreasonable to support a defence at public expense in such a case.

If the Motor Insurers’ Bureau (MIB) is fully dealing with the matter, we may not consider it reasonable to provide legal aid. In addition, if your client has withheld consent to the MIB dealing with the claim, we may consider it unreasonable to fund a defence.

Where the claim against your client relates to matters outwith the MIB they need to show both a valid defence on quantum and that the value of those heads of claim justify the cost of a defence.

Where an accident has occurred at work, additional information that should be provided is:

• Details of any contractors, sub-contractors, employers or other people who gave instructions
• Precise information about the opponent’s duties and whether they arise from common law or statutory duties and how these were breached.
• Whether your client is a member of a trade union and if so, why trade union funding is not available
• An expert opinion on the cause of the accident.

In these cases, it must be shown that the opponents knew or ought to have known of the hazard at the relevant time and had failed to take steps to protect your client (or the deceased).  You should provide:

• Employment history of your client (or the deceased) including written confirmation from the Department for Work and Pensions
• Full details of the conditions in which they worked
• Information about any steps taken by the opponents to prevent hazards arising
• Details of the state of knowledge about the hazard in the industry at the material time
• Medical evidence showing a causal link between exposure to the hazard and any disease suffered
• Information about whether your client (or the deceased) was a member of a trade union and, if so, why the trade union is not funding
• Information on possible time bar issues if this may be a factor in the case.

To show the opponents knew or ought to have known of any hazard that resulted in the accident, you must provide:

• A full description of the place the accident occurred and the defect that caused the accident
• Details of the opponents responsibility for maintenance of the area where the accident occurred or had caused the defect
• Information about how long the defect had existed and whether the opponents ought to have taken steps to remedy the defect
• Details of the opponents’ duties of care and how these were breached
• An expert report on liability may be needed

Where professional negligence is being claimed an expert report on liability addressing the tests set out in the case of Hunter v. Hanley 1955 SC 200 is always needed unless the negligence is very obvious.

An expert opinion showing loss may also be necessary.  Even where negligence is obvious it may not be possible to establish that the negligence caused any loss without a report addressing this matter.

Landlords are under a common law obligation to put property let into a habitable or tenantable condition at entry and to maintain it in habitable or tenantable condition during the lease.  Most landlords are also now under the statutory implied obligation that rented houses be “fit for human habitation”.

Our evidential requirements are:

• A statement from your client providing:
• confirmation that they are the tenant of the property allegedly suffering from condensation or dampness
• details of the nature of the problem, including details of when it first arose
• details of when the landlord was told about the problem, their response and details of any steps they have taken, or propose to take, to put it right, and
• details of the orders that your client seeks.
• A report from an architect, or other suitably qualified expert speaking to the condition of the property.
• Where your client wishes to make a claim for damages for loss of, or damage to, property, vouching.
• Where your client wishes to make a claim for damages for ill health, a medical report dealing with this.
• Supporting evidence or, if not, an explanation why not.

Proceedings in the Court of Session will generally involve claims worth over £100 000.If the value sought is greater than £100,000, you will sufficiently set out the value of the claim and how this has been assessed to satisfy us Court of Session proceedings are appropriate. In cases where the sheriff court also has jurisdiction you should explain why Court of Session proceedings are appropriate.

Where the sheriff appoints a safeguarder, responsibility for the safeguarder’s fees does not fall to any specific party.  We cannot be found liable to meet the costs of a safeguarder.  For the cost to be met from the Fund, an interlocutor is needed ordering that the assisted person meets such costs. 

If you are acting for the safeguarder who considers that they should enter the process, your client should apply for civil legal aid. In these cases, if your client shows that they are entitled to enter the proceedings we will be satisfied there is probable cause.

Your client should focus on the need for this separate representation in the proceedings by detailing why the existing parties cannot adequately deal with any issues that might arise.

It is not enough to submit only a statement from the safeguarder indicating that they have been appointed so need legal aid. The statutory tests must be addressed and met before a grant can be made.

Evidential requirements

Our evidential requirements are:

• Copy of the summary application
• Copy of any interlocutor of appointment
• Note or statement from the safeguarder detailing why they need legal aid
• All relevant documents or reports that may have been prepared for the case

When your client is acting in an official capacity, such as a court appointed safeguarder, the financial resources of that person are disregarded. 

Information must be provided to us detailing:

• The value of any property or the amount of any fund out of which that official is entitled to be indemnified
• The disposable income and capital of any persons who might benefit from the outcome of the proceedings.