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

Work of an unusual nature or likely to involve unusually large expenditure: when is prior approval required?

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

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 the cost of the work likely to involve unusually large expenditure is below £2,000 excluding VAT, you do not need our approval.

Examples of work likely to be unusual or to involve unusually large expenditure

We regularly get asked about some scenarios which need approval for unusual work, or unusually large expenditure.

Use the drop down menu below to select a type of work and find out when approval would and would not be needed, and any guidelines on how the cost will be assessed.

Other examples of work of an unusual nature or likely to involve unusually large expenditure are:

  • Arranging for a witness to travel from some distant country to give evidence in Scotland
  • Arranging to hold a consultation between counsel and an expert witness at the expert’s practices and thus incurring substantial time and travel costs
  • Getting a transcript of evidence (except where this is required by the court ex proprio motu);

Child welfare reporters

Where a child welfare report is ordered by the court and the cost will not exceed £3,000 you do not  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 £3000 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.

How to apply for approval for unusual work or of unusually large expenditure: default online route and exceptions

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 (unusual or 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.

How to provide a breakdown of the costs linked to unusual work or unusually large expenditure

When applying for approval for work of an unusual nature or 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
  • Fully explain the need for unusual work.

Guidance on specific unusual work: mediation

Approval for mediation in family cases

Mediation is available both from:

  • Relationships Scotland Member Services (RSMS)
  • Accredited solicitors who are members of Comprehensive Accredited Lawyer Mediators (CALM).

RSMS has generally focused on disputes involving children and provided the service free.

Some RSMS offices offer “all issues” mediation (for example, on issues relating to financial provision) and charge a fee for providing this service.  If you want to make use of RSMS “all issues” mediation the same rules apply as for using CALM mediators.

CALM mediators offer a comprehensive mediation service including financial matters and issues about children and charge for the service.

You must get our approval before making use of mediation involving CALM or RSMS where a fee is charged.  We recommend you use the template for family mediation for this work.

Legal aid will cover your client’s half share of the total mediation fee but not the opponent’s half share.  If the opponent is also receiving legal aid or advice and assistance they can ask us to meet the cost of their half share.

Approval for mediation in non-family cases

The costs of non-family mediation may be allowed under civil legal aid. We will regard the costs of mediation in non-family cases as an outlay in your account.

Any approval covers your client’s own share of the total mediation fee only.  If the opponent is also receiving legal aid or advice and assistance they can ask us to meet the cost of their half share.

We will only consider requests for mediation involving accredited mediators

For both family and non-family mediation you should get our approval before incurring the outlay.

We need the following information:

  • The form that the mediation will take and in particular, whether there will be legal representation on both sides
  • Details of the fees the mediator will charge
  • Estimate of the time to be spent by you on advising the assisted person before and after the mediation
  • The prospects of success and the likelihood of being able to resolve the dispute by way of mediation
  • Your client’s attitude towards the mediation and the likelihood of both parties accepting the outcome of any mediation
  • Details of costs that may be avoided should the mediation go ahead, for example, avoiding a proof or other court hearing

Where someone has a grant of civil legal aid (to be paid on a time and line basis), we will also consider paying your fees to attend the mediation if you can demonstrate that this would be reasonable and would assist the process of mediation.

Guidance on specific unusual work: supervised contact

The cost of paid for supervised contact may be allowed where we are satisfied that the work will help to decide the case either judicially or extra judicially.  Supervised contact involves the one on one presence of a contact centre’s staff member throughout the session.

An application should address the following:

  • Where the court has ordered supervised contact  how many sessions have been ordered
  • Whether the court is to receive a report about the outcome of the sessions
  • Whether the costs of the supervised contact are to be shared between the parties in the action and if the costs are not to be shared, why.

If possible, a copy of the interlocutor ordering supervised contact should be provided with the sanction application.

If a final interlocutor is made, ordering contact on a supervised paid for basis then this is an expense that your client has to meet from their own funds. We cannot be responsible for any costs in connection with supervised contact after the court case has concluded.

Guidance on specific unusual work: family therapy ordered by the court

The cost of family therapy may be allowed where it is ordered by the court to resolve a family dispute.  This works allows all parties to feel they have been heard and to let them understand that the needs of their children are the priority.

The therapist to be instructed should be a fully qualified family therapist who is a member of the Association for Family Therapy which is regulated by the UK Council for Psychotherapy, the British Association for Counselling and Psychotherapy, COSCA (Counselling & Psychotherapy in Scotland) or another recognised regulatory body.

Where an application is made for family therapy you need to:

  • Give details about the issues to be considered by the family therapist
  • Detail the cost of the therapy
  • Provide information about the number of sessions and the duration of the therapy
  • Give your assessment of the potential for success
  • Provide details of the therapist
  • Provide a copy of the interlocutor ordering family therapy

Guidance on specific unusual work: special measures for child witnesses and vulnerable adult witnesses)

The Vulnerable Witnesses (Scotland) Act 2004 contains provisions relating to child and adult vulnerable witnesses and, in particular, special measures that can be put in place in certain circumstances.

You may need to seek our approval to use special measures to assist child and vulnerable adult witnesses. Such items include:

  • A live television link where the child and/or adult vulnerable witnesses are located in a remote site not operated by the Scottish Courts Service
  • A commissioner taking evidence

Vulnerable witnesses and evidence on commission

If you are the person seeking this special measure, you can get cover for the costs of the commissioner appointed from us (if the commissioner is not a sheriff or judge in which case the Scottish Courts and Tribunal Service meets the costs).

It is important to include in your request all associated costs such as:

  • clerks’ fees
  • shorthand writers’ fees
  • accommodation costs and travel costs

Any associated costs not approved timeously cannot be paid for from the Fund.

Accounts information in relation to approval for special measures

Where appropriate, we need a detailed breakdown of the time spent and the rates charged for our Accounts Assessment Department to properly assess the outlay claimed.

 

Timing of applications: when will we consider retrospective approval for unusual work or unusually large expenditure?

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.

We may grant retrospective sanction for unusual work if we are satisfied we would have given approval and that there was special reason why prior approval was not applied for.  This would have to be more than mere oversight.

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