Work likely to involve unusually large expenditure

You need our prior approval for work likely to involve unusually large expenditure [Regulation 21 Civil Legal Aid (Scotland) Regulations 2002]. No specific criteria for approval are laid down in the regulations and the matter is at our discretion.

‘Unusually large expenditure’ is defined as expenditure on a single item of work costing above £3,000 (excluding VAT) where the proposed expenditure has not already been covered by a grant of approval in relation to counsel, expert or unusual work.

You always need our prior approval for work likely to involve unusually large expenditure [Regulation 21 Civil Legal Aid (Scotland) Regulations 2002].

We have no power to grant retrospective approval for work likely to involve unusually large expenditure and so it is important that you obtain our prior approval.

Please note: with regard to expert witnesses, if we have already provided approval for the expert to provide a report under expert sanction relating to a grant of civil legal aid, and the solicitor wishes the expert to give evidence in court, if this is expected to cost more than £3,000, a request for approval for unusually large expenditure is not required. The original grant under expert prior approval covers this work.

No specific criteria for approval are laid down in the regulations and the matter is at our discretion. In assessing a request to approve work likely to involve unusually large expenditure, we need to be satisfied that the proposed work is reasonable in all the circumstances of the case.

We will grant approval for work likely to involve unusually large expenditure where it is shown that the proposed work may assist in advancing the case or in its early resolution; and that the work has due regard to economy in the breakdown of costs provided.

All work done is subject to our scrutiny and possible abatement and may also be subject to taxation by the auditor. The requirement for prior approval operates as a safeguard for you. It is much better for you to know in advance that we are satisfied it is appropriate for you to carry out the proposed work.

It is important to note that the regulations mean we cannot grant approval retrospectively for unusually large expenditure so you must obtain approval before the work is instructed otherwise we cannot make payment.

Where a child welfare report is ordered by the court and the cost will not exceed £3,000 you do not need approval irrespective of whether the report is ordered ex proprio motu or not.

If the cost of the report is to be in excess of £3,000 our prior approval is needed irrespective of whether the report has been ordered ex proprio motu or not. Your approval request needs to give details of the costs to be incurred and reasons why funding beyond £3,000 is required.

The £3,000 limit is exclusive of VAT and outlays that may be incurred to third parties when preparing the report but is inclusive of outlays incurred directly by the child welfare reporter such as travel costs.

The cap applies to each individual report prepared in a case rather than being a global limit to cover the cost of several reports.

Risks where liability for the cost of child welfare reports changes during the case

We sometimes see situations where the court amends liability for the cost of a child welfare report after the report has been finalised.  The court will sometimes move the cost from one party to another, or distribute costs between the parties in a different way.

We have no power to approve unusually large expenditure or special urgency cover retrospectively.  The regulations make no provision for this.  Where a child welfare report is instructed by the court, and the party initially liable to meet the cost:

1. a) requires cover under the special urgency provisions; and/or
2. b) requires our prior approval because the total cost exceeds £3000 plus VAT

and the court pronounces a later interlocutor amending liability for the cost of the report so that it is apportioned differently between the parties, we cannot competently, and within the regulations that constrain us, retrospectively approve any additional cost under any applicable grant of civil legal aid for work on the report which has concluded. Without prior approval it is unlikely that any additional cost to an applicant can be met from the Fund.

Where the court amends liability, to place responsibility for payment of a report upon a person who, when the work was carried out, was not an assisted person with the appropriate approvals in place, there is a risk that the costs for which the person is newly found liable cannot be met from the Fund. This may be the case even if this person is an assisted person at the time when the court amends liability.

Where it is known in advance that a court is being invited to shift the liability for a child welfare report it is recommended that attention be given to the legal aid ramifications and requirements.  You should contact us beforehand to find out the steps which can be taken so that any issues are brought to the attention of the court before the order is made.

Approval requests must be submitted via the online ‘Sanction’ function. This provides us with all the basic information and papers needed for a prompt decision. You should apply as soon as possible and not leave it until a proof or other hearing is imminent. A request for approval should not be made via an online message.

Documents to be submitted with an application for approval (unusually large expenditure)

If proceedings have already been commenced when you seek approval, you should:

• send us a copy of the initial writ or summons, defences or record with the application for approval
• draw our attention to averments relevant to the application
• when you send us lengthy documents (such as notes of evidence, judgements, reports, excerpts from textbooks) highlight relevant passages
• where appropriate, provide a copy of the court interlocutor ordering the work.

When applying for approval for work likely to involve unusually large expenditure, you should:

• give a full breakdown of the costs likely to be incurred
• state clearly what fees are proposed, including fees for reports, attendance at court and travel time and costs, with a statement of the basis of charge
• specify any subsistence and overnight accommodation charges. We expect solicitors, wherever possible, to secure accommodation and subsistence costs within the limits of £113.56. This is the prescribed limit that applies to counsel. All costs require to be justified even where they are within this rate
• fully explain the need for the work.

The power to grant retrospective approval applies only to counsel, expert witnesses and unusual work.

It does not apply to work likely to involve unusually large expenditure.

You must obtain approval before the work is instructed otherwise we cannot make payment.