This grant of sanction will include the following:
This work will be subject to the scrutiny of our Accounts Division to determine that the work was reasonable and undertaken with due regard to economy.
We consider that a “necessary note” is where counsel provides a legal opinion or substantive note on the line of evidence which is clearly integral to your client’s case. Necessary notes do not include usual correspondence between counsel and the instructing solicitor.
Where sanction has been granted for the conduct of the proof counsel needs to be mindful of the provisions to be satisfied before any additional fee for preparation can be allowed. The fees payable to counsel, as prescribed in Schedule 4 of The Civil Legal Aid (Scotland) (Fees) Regulations 1989, generally include all associated preparation work. An additional fee for preparation can only be allowed where we are satisfied that the terms of paragraphs 5 and 6 of Schedule 4 have been met. No fee is payable unless it relates to a proof, debate or like hearing and counsel has been instructed to attend that hearing.
Where we grant sanction for counsel to conduct the proof, you need further sanction for counsel to conduct any preliminary/incidental and/or pre proof hearings.
We do not consider it appropriate for counsel to conduct hearings which are routine, procedural or do not advance the cause. Hearings we consider do not necessarily need counsel are:
If you need counsel to attend any of these hearings mentioned above, you must apply again and separately for sanction for counsel to conduct the hearing in question.
You require to submit separate sanction applications for counsel if you wish counsel to conduct each separate hearing (even if the hearing itself is continued/deferred). This is because it may be considered appropriate for counsel to conduct one such hearing but not necessarily them all.
Where sanction is granted for junior counsel and/or senior counsel to conduct an appeal before the Sheriff Appeal Court or where you have automatic sanction for junior counsel and/or sanction for senior counsel for an appeal before the Court of Session then this grant of sanction will include:
Further sanction applications are not required for such appeals unless we specifically tell you in advance that we are restricting such a grant for counsel. It is open to us to restrict the scope of sanction.
If sanction is granted for counsel to conduct the full proof or appeal hearing and the decision of the sheriff is then appealed to the Sheriff Appeal Court, the following will be required:
If sanction is granted for counsel to conduct the full proof or appeal hearing and the decision of the sheriff is then appealed directly to the Court of Session, the following will be required:
If sanction is granted for counsel to conduct an appeal before the Sheriff Appeal Court and the decision of that court is then appealed to the Court of Session, the following will be required:
You can request sanction to employ counsel for various purposes short of conducting the case itself.
Where you are asking for the limited use of counsel you should:
Where an Opinion from Counsel is sought, we must be satisfied that counsel’s opinion is not premature and that enough information is available to enable counsel to give a meaningful opinion.
We will always consider:
An Opinion from Counsel should, where appropriate:
You must also make a separate sanction request for counsel to consult with an expert witness whether this is for:
Such a sanction request should include:
We expect experts to have greater access to conferencing and video-conferencing facilities and that consultations at a distance will generally take place by these means.
Counsel’s precise fees do not need to be included as these are not agreed in advance but are a matter for our Accounts Assessment Department at a later stage.
If you need counsel to consult with an expert witness, you will require to submit a fresh and separate sanction application for counsel to do this work. You may also require to submit a separate and additional sanction application for an expert if the expert is charging a fee for such a consultation.
Where we grant sanction for counsel to conduct the court hearing it is always considered to be your responsibility to obtain precognitions of all witnesses. Therefore, it is not appropriate for counsel to be involved in taking precognitions.
Where you require sanction, you must apply to us before employing counsel to conduct the proof or appeal. We may sanction employment of counsel retrospectively, but only if:
We do not regard oversight or ignorance of the regulations as a special reason. The provisions for retrospective sanction do not apply where prior approval was applied for but refused.
Procedures after legal aid is granted
Find out what documents/information should be provided when applying for sanction for unusual expenditure or work likely to involve unusually large expenditure.
Procedures after legal aid is granted
Learn about what information Reporters will disclose in proof proceedings, when sanction is needed before taking precognitions and joint or shared precognitions