Handbooks Index

 

Part 3: Advice and Assistance


Chapter 4

Increases - employment of third parties under A&A and ABWOR

4.1 Employment of counsel
4.2 Appeal applications
4.3 Senior counsel
4.4 Drafting and revision of pleadings
4.5 Expert witnesses based at a distance
4.6 Mediation
4.7 Tracing relatives or witnesses, and “fishing enquiries”

 

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Unless otherwise stated, in this section "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986, and “the regulations” means the Advice and Assistance (Scotland) Regulations 1996.


4.1 Employment of counsel

The use made of counsel under advice and assistance is limited. You can ask for increases –

There are few other occasions where an increase would be sought to cover counsel’s costs.
If you are seeking an increase for an opinion of counsel

We will consider why you wish to get the opinion:

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4.2 Appeal applications

We are often asked to grant increases for an opinion of counsel in connection with an appeal application. If

the previous legal aid will cover an opinion from junior counsel (or senior counsel if senior was instructed with our approval) on the prospects of success of an appeal.

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4.3 Senior counsel

Requests for senior counsel will be for advice on a very complex issue or a novel point of law. For example, sometimes funding might have been approved for senior counsel for one of several applicants with problems related to the same issue – group actions may fall into this category and are generally the subject of a separate procedure.

A note from junior counsel, recommending the employment of senior counsel, may be helpful in some cases.

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4.4 Drafting and revision of pleadings

Advice and assistance cannot be made available for any step in court proceedings (except where these are covered by ABWOR). We must therefore refuse all requests for counsel to draft or revise pleadings.

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4.5 Expert witnesses based at a distance

It is normally more expensive to employ a medical or other expert who is based at some distance from the court, compared with an expert closer to the court. If you seek to employ such an expert, you should provide details of

and

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4.6 Mediation

The costs of mediation can be allowed as an outlay in your account under advice and assistance or civil legal aid, provided certain conditions are met. (See Part IV paragraphs 7.50 – 7.52, for more information about mediation under civil legal aid.)

We can consider requests for increases in expenditure under advice and assistance or for sanction in civil legal aid cases to cover the costs of mediation.

There is no restriction on the type of case that can be considered suitable for mediation, but we will consider requests based on the criteria set out below.

We will regard the costs of mediation as an outlay in your account under advice and assistance or civil legal aid. This will, of course, apply only to the client’s own share of the total mediation fee, and not any share which is to be borne by an opponent or opponents. If the opponent is also receiving legal aid or advice and assistance, they should seek sanction or an increase in authorised expenditure to cover their share of the cost.

We will normally only consider requests for mediation involving mediators accredited by the Association of Mediators, the Centre for Dispute Resolution (CEDR), Core Solutions Group, Core Mediation or the Law Society of Scotland under its Accord scheme. Family mediation is also available from Family Mediation Scotland (FMS) and from accredited solicitors who are members of Comprehensive Accredited Lawyer Mediators (CALM). We may, however, also agree to the use of other accredited specialists.

FMS has generally focused on disputes involving children and provided the service free. Obviously, where the service is provided free there is no legal aid implication, and you can make use of the service without asking for an increase in authorised expenditure.

If you wish to make use of mediation under advice and assistance, you must ask for an increase in authorised expenditure to cover the cost of the mediation proceedings in advice and assistance. We will normally consider an increase of £500 reasonable.
Before we can consider a request for sanction or an increase in authorised expenditure, we need the following information:

Under the advice and assistance payment scheme or where someone has a civil legal aid certificate which is to be paid on a time and line basis, we will also consider paying your fees to attend the mediation if you can show that this would be reasonable, necessary and would help the process of mediation.

We would normally expect the parties to enter into a legally binding agreement at the conclusion of the mediation. You should give us information on the outcome of the mediation and, if it was not successful, the reason why not. We will need the latter information if you seek a further increase, or send us a civil legal aid application after the mediation has taken place. Where the case concludes following the mediation, you should indicate in the narrative of your account whether the mediation resulted in a settlement.

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4.7 Tracing relatives or witnesses, and “fishing enquiries”

Advice and assistance is not available

An increase can be granted to find out where the person is, however

We will not grant an increase to employ a private investigator in an adultery case without details about the circumstances in which the alleged adultery is taking place. This should include the address at which it is believed to be taking place and the likelihood of getting evidence.

Any increase will normally cover getting a report from one enquiry agent only. It will only cover two if it is shown that the court in which the action is to be raised will not accept the evidence of a single enquiry agent or there are other reasons for two agents to report.

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