UK Supreme Court cases

Where legal aid is granted for applying to the UK Supreme Court for special permission to appeal the UK Supreme Court Practice Direction 13 states at 15.8 that the general rule is that only one counsel’s fees is allowed on assessment for any stage of an application for permission to appeal unless a public funding or legal aid certificate authorises two counsel.

Our own guidance at Schedule 3, paragraph 32(b)(ii) of the Criminal legal Aid (Scotland) (Fees) regulations 1989, states that “there is a working assumption that a single fee is allowed for one junior counsel even where sanction is authorised for two counsel and that it would only be in exceptional cases that fees are allowable for two counsel”.

If we receive an application for the prior approval of two counsel at the permission stage we will refuse the application and advise you of the terms of the UK Supreme Court Practice Direction and our own guidance on the matter.

Where there is cover in place for proceedings in the UK Supreme Court one junior counsel, who is counsel qualified at the Scottish bar, can be instructed without our prior approval.

Where approval is sought for additional counsel then we need to be satisfied of the factors set out in the section ‘Two or more junior counsel’.

Where approval is sought to instruct counsel other than Scottish counsel, we will decide whether this is appropriate in all the circumstances of the case. The following factors will be relevant to your consideration:

  • if the case which is the subject of the appeal may not be finally determined by the appeal, meaning that there are likely to be further stages of the case calling before a Scottish court, then the instruction of counsel qualified at the Scottish bar is appropriate, as this would allow counsel to continue to act if the case is returned to a Scottish court. We will refuse the application in those circumstances
  • if the counsel to be instructed has particular expertise in the subject of the appeal which is not shared by counsel at the Scottish bar, we can grant the application
  • you should tell us about any other factors specific to the case which show that it is more appropriate to use counsel other than counsel qualified at the Scottish bar.
Appeal Court cases
Retrospective requests for the approval of counsel – the “Special reason” test

In this section

Approval for counsel

Approval for counsel – test, definitions and principles

Read about the legal basis of the tests, when you need to request our approval, definition of counsel in different courts and our approach to applying the test.

Approval for counsel

Circumstances where approval for counsel is required

Find out when you need to make an application for prior approval for the employment of counsel.

Approval for counsel

Circumstances where prior approval for counsel is not required

Find out when you do not need to make an application for prior approval for the employment of counsel.

Approval for counsel

Circumstances where we cannot grant prior approval

Guidance explaining where prior approval cannot be granted

Approval for counsel

Approval of counsel in Sheriff court proceedings

Read about the factors we will consider and the information you need to provide us with to make a decision.

Approval for counsel

Approval of counsel at the Petition stage in High Court proceedings

Read about the situations in which you need approval to employ counsel at the petition stage and the information you need to provide us with to make a decision.

Approval for counsel

Applications for employment of senior counsel, more than one junior counsel and senior counsel acting alone

Read about limitations on the use of counsel depending on the basis of our approval and the extent to which counsel can conduct proceedings when approved by us.

Approval for counsel

Appeal Court cases

Read guidance on the employment of counsel in the Appeal Court

Approval for counsel

Retrospective requests for the approval of counsel – the “Special reason” test

Guidance on Retrospective requests for the approval of counsel – the “Special reason” test

Approval for counsel

Division of duties between you and counsel

Guidance on division of duties between you and counsel

Approval for counsel

Instructing a solicitor advocate

Guidance on instructing a solicitor advocate