Sanction for counsel to conduct the court proceedings (a S101 proof, S110 Review of Grounds Determination hearing and appeals)

This grant of sanction will include the following:

  • Consultations with your client
  • Necessary notes at the discretion of counsel

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:

  • Preliminary/pre-proof hearings.
  • Case management hearings.
  • Hearings to consider specification of documents.
  • Applications for special measures and associated hearings.
  • Hearings to consider extension or variation of an interim compulsory supervision order.
  • Adjournments/deferred hearings.

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.

Counsel conducting appeal proceedings

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:

  • Drafting Adjustments to Stated Case.
  • Conduct of any Hearing on Adjustments.
  • Drafting additional questions for the Stated Case.
  • Drafting any Note of Argument if called for by the Court.
  • Drafting List of Authorities if called for by the Court.
  • Consultation with the appellant/respondent prior to the appeal taking place.
  • Conduct of the appeal hearing itself.

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.

Decision of the sheriff appealed to the Sheriff Appeal Court

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:

  • A fresh sanction application for counsel to conduct the appeal before the Sheriff Appeal Court.
  • A fresh sanction application for counsel to conduct this disposal hearing before the sheriff, if the appeal is successful and remitted back to the sheriff.

Decision of the sheriff appealed to the Court of Session

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:

  • A fresh sanction application for more than one junior counsel, senior counsel or senior acting with junior counsel to conduct the appeal before the Court of Session.
  • A fresh sanction application for counsel to conduct this disposal hearing before the sheriff, if the appeal is successful and remitted back to the sheriff.

Decision of the Sheriff Appeal Court appealed to the Court of Session

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:

  • A fresh sanction application for more than one junior counsel, senior counsel or senior acting with junior counsel to conduct the appeal before the Court of Session.
  • A fresh application for counsel to conduct the disposal hearing before the sheriff, if the appeal is successful and remitted back to the sheriff.

Instructing counsel for purposes short of conducting a court proof or appeal including Opinions from Counsel

You can request sanction to employ counsel for various purposes short of conducting the case itself.

For example:

  • Asking for an Opinion from counsel.
  • Appearing at a pre-proof hearing.
  • Conducting a Case management meeting/hearing or any other preliminary or incidental diet fixed by the court.
  • Preparing a Devolution Minute and appearing at a devolution minute hearing.
  • Preparing a child and/or vulnerable witness Application and conducting any such hearing.
  • Preparing a Petition for Specification of Documents and conducting any such hearing.

Where you are asking for the limited use of counsel you should:

  • Give full reasons why this is considered to be appropriate.
  • Give a proper explanation of the background and the complexities involved.
  • Identify what exactly is the legal issue counsel is to consider.
  • Explain why this matter is so complex, novel or unusual that it appears to be appropriate to use counsel.
  • Where relevant, identify why the use of counsel may save court time or expense in the long run.

Sanction to obtain counsel’s opinion

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:

  • What exactly is the legal issue counsel is to consider?
  • Is this matter so complex, novel or unusual that it is appropriate to instruct counsel?
  • Is the matter so serious that is appropriate to gain counsel’s opinion?
  • Will it perhaps save court time or expense in the long run?

An Opinion from Counsel should, where appropriate:

  • Address the benefits to your client or the child in the proceedings or the court of undertaking a particular course of work.
  • Address how court time may be saved, evidence agreed and such like by undertaking any particular line of work.
  • Show that if any particular investigative work is proposed, it is reasonably expected to materially assist your client’s case.

Consultations with expert witnesses

You must also make a separate sanction request for counsel to consult with an expert witness whether this is for:

  • An expert witness already sanctioned for your client.
  • A proposed expert witness for your client not yet sanctioned.
  • An expert witness for the reporter or other party to the proceedings.

Such a sanction request should include:

  • A copy of any report written by the expert witness.
  • Detailed reasons why a consultation is considered appropriate and to show why you cannot get the information in a statement or precognition.
  • A detailed breakdown of costs including any travel costs and a note of the expert’s fees.
  • Details of any outlays, such as accommodation, that the solicitor and counsel is likely to incur.
  • An explanation that the method and place of consultation is the most economical.

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.

Precognition of witnesses

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.

Retrospective sanction for counsel

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

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.

 

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