What information should be provided in support of an application for approval for unusual expenditure or work likely to involve unusually large expenditure?

Documents to be submitted

With the application for approval you should:

  • send us a copy of the disputed Statement of Grounds if the work relates to a S101 Statement of Grounds proof in the sheriff court and they have been amended since the legal aid application was made
  • send us a copy of the Grounds of Appeal or Stated Case if they are available and have not been uploaded previously where the work relates to an appeal in any court
  • draw our attention to averments relevant to the application
  • highlight relevant passages in any lengthy documents you send in support of the approval application.

If you have already sent us documents that you wish to refer to in the application we will still have them and you do not need to resubmit them. Simply make reference to them in the body of the approval application.

Issues to be addressed

Where the work involves getting an order of the court, such as drafting and seeking a Devolution Minute, you should get our approval before the court is asked to consider the matter.  The application should:

  • tell us in detail, why you believe the work is reasonable in all the circumstances of the case
  • tell us why you think that such a court order is likely to advance the case or assist in its resolution
  • show that all reasonable alternatives have been considered
  • give full costings both for the course of action proposed and for possible alternative courses of action to demonstrate due regard is being had to economy

Details of costs to be provided

When applying for approval for work of an unusual nature or likely to involve unusually large expenditure, you should:

  • fully explain the need for the unusual work or work that is going to involve unusually large expenditure to demonstrate that it is reasonable
  • give a full breakdown of the likely costs to demonstrate that they are reasonable
  • state what fees are proposed, including fees for reports, attendance at court and travel time, with a statement of the basis of charge, for example, an hourly or daily rate
  • specify individually any likely outlays
  • in any travel costs sought, include a note of the form of travel to be used to demonstrate that you are using the most economical form of transport or explain why you are not
  • specify any subsistence and overnight accommodation charges. We expect solicitors, wherever possible, to secure accommodation and subsistence costs (including dinner and breakfast) within the limit of £125.14 per night. This is the prescribed limit that applies to counsel. All costs require to be justified even where they are within this rate.
  • where appropriate, address the issue of sharing the costs with other parties to the proceedings, including the Reporter and Safeguarder
  • where applicable, address why it is reasonable for a solicitor to undertake this work as opposed to a non-qualified person.

We will part grant your application if we decide to restrict some of the work asked for and/or costs sought for this.

Retrospective grants of approval for unusual work or unusually large expenditure

We may grant retrospective approval for unusual work or unusually large expenditure, but only if:

  • we would have done so if prior approval had been sought
  • we consider there was special reason you did not apply for prior approval.

There is no definition of special reason in the legislation but we look at:

  • whether you can show that you were prevented from making a prospective application because of circumstances beyond your control and these circumstances were ones which you could not have reasonably foreseen; or
  • whether you can show there were circumstances within your control, which ought to have been foreseen, but the oversight was still justifiable in the particular or unusual circumstances in which the expense was incurred.

If you just forgot or did not know that you had to apply for approval in advance of carrying out the work then we will not regard this as being a special reasons and will refuse your application for retrospective approval.

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