Work of an unusual nature or likely to involve unusually large expenditure

You need our prior approval for work of an unusual nature or likely to involve unusually large expenditure [regulation 14(1)(d) of the Criminal Legal Aid (Scotland) Regulations 1996].

All expenditure in a legal aid case is subject to:

• Our scrutiny and possible abatement.
• Possible taxation by the auditor.

To an extent, obtaining our prior approval for unusual work or unusually expensive work, when in doubt, operates as a safeguard for you. You may wish to know in advance that we object to some item of expense, rather than finding out after the work has been done and the expense incurred that we will not accept it as a valid charge on the Legal Aid Fund.

This provision involves a clear distinction between work of an unusual nature and work likely to involve unusually large expenditure.

We consider the following work to be unusual, and you always need prior approval for:

• Qualified or unqualified staff travelling abroad to take statements or any other purpose.
• Your attendance at a post-mortem.
• Employing more than one solicitor in the conduct of proceedings.
• Precognition-on-oath procedure.
• Use of more than one solicitor to conduct proceedings in the sheriff court.

You are entitled to apply for prior approval to use more than one solicitor to conduct proceedings in the sheriff court.

You should provide:

• The reasons sitting behind the request by reference to the particular circumstances of the case.
• Why you believe this is necessary.

Where the request arises from the number, nature or significance of the productions, you should provide information which demonstrates exceptional difficulties or complexities in the preparation and presentation of the applicant’s defence. A reference to the number and volume will not, of itself, be sufficient.

You should consider the alternative of using a non-legally qualified person, if appropriate, for example, where there is a need for marshalling extensive productions.

You should also consider and compare the costs of employing counsel instead.

We do not consider the following work to be unusual, and you do not need our prior approval for:

• Taking a qualified precognition.
• Attendance at VIPER parade outwith Scotland.
• Visiting a client in a prison outwith Scotland to take instructions.
• Obtaining a report from your client’s GP.
• Commissioners costs if likely to be less than £2000, excluding VAT.
• Perusing Crown disclosure.

For work likely to involve unusually large expenditure, you only need to apply for approval where the work carried out is likely to cost £2000 or more, excluding VAT.

No prior authority required

Subject to the £2,000 limit, we will treat the use of an interpreter or translator as an ordinary outlay, which does not need our prior authority. When you send us your account, you will need to satisfy us that the outlay was actually and reasonably incurred, with due regard to economy.

You only have authority to undertake work without approval if the final cost is less than £2,000. The whole charge, not just that exceeding £2,000, will be abated if it exceeds the limit. Where the cost of the work likely to involve unusually large expenditure is less than £2,000, you do not need our prior approval. If you would feel more comfortable seeking our prior approval you can do so.

The following are examples where you do not need approval unless the work is likely to incur unusually large expenditure – that is, £2,000 or more:

• Unqualified staff taking witnesses’ statements, where there are likely to be additional expenses such as an overnight stay that would avoid further travelling at a later date.
• Expenses of defence witnesses appearing at trial, where there were travelling expenses such as air fares.
• Expenses involved in your travelling to see an assisted person who cannot travel to see you because they are in prison or hospital.
• Procedures regarding specification of documents or statements on oath, where basic steps such as contacting the procurator for copy statements have already been followed.

If you have any doubt you may contact our Criminal Applications Department to discuss your concerns.