Handbooks Index

 

Part 4: Civil legal aid


Chapter 4

The approach to the merits of different types of case

4.1 Divorce, civil partnership, cohabitees and family matters
4.2 Court of Session consistorial cases
4.3 Cross actions of divorce, dissolution of civil partnership, residence, etc
4.4 Actions of divorce or dissolution of civil partnership – applications to pursue
4.5 Actions of divorce or dissolution of civil partnership – applications to defend
4.6 Divorce or dissolution of civil partnership – fault-based actions where there are no ancillary craves – pursuer
4.7 Divorce or dissolution of civil partnership– one year separation with consent – applications to pursue
4.8 Divorce or dissolution of civil partnership– one year separation with consent – applications to defend
4.9 Divorce or dissolution of civil partnership – two years’ separation – applications to pursue
4.10 Divorce or dissolution of civil partnership – two years’ separation – applications to defend
4.11 Divorce or dissolution of civil partnership – unreasonable behaviour – applications to pursue
4.12 Divorce or dissolution of civil partnership – unreasonable behaviour – applications to defend
4.13 Divorce or dissolution of civil partnership – adultery – applications to pursue
4.14 Divorce or dissolution of civil partnership – adultery – applications to defend
4.15 Divorce or dissolution of civil partnership– issue of interim gender recognition certificate – applications to pursue
4.16 Divorce or dissolution of civil partnership– issue of interim gender recognition certificate – applications to defend
4.17 Orders for financial provision – married couples and civil partners
4.18 Capital sum order
4.19 Transfer of property order
4.20 Periodical allowance order
4.21 Earmarking order
4.22 Incidental order in terms of section 14(2) of the Family Law (Scotland) Act 1985
4.23 Pension sharing orders
4.24 Employing expert witnesses
4.25 Implementation of a pension sharing order
4.26 Orders for financial provision and provision on intestacy – cohabitees – applications to pursue
4.27 Section 28 – financial provision on separation
4.28 Section 29 – provision on intestacy
4.29 Orders for financial provision and provision on intestacy – cohabitees – applications to defend
4.30 Proceedings arising from the Gender Recognition Act 2004 – applications to pursue
4.31 Section 6 – correction of errors in full gender recognition certificate
4.32 Section 8 – appeal against refusal of gender recognition certificate
4.33 Section 18 – orders where expectations are defeated
4.34 Adoption and permanence orders
4.35 Orders relating to parental responsibilities and parental rights
4.36 Residence order
4.37 Defending a residence order
4.38 Contact order
4.39 Defending a contact order
4.40 An order removing parental responsibilities or parental rights
4.41 Defending an order removing parental responsibilities and parental rights
4.42 An order imposing parental responsibilities and parental rights
4.43 Defending an order imposing parental responsibilities and parental rights
4.44 Specific issue order
4.45 Defending a specific issue order
4.46 Variation of an order
4.47 Minute for failure to obtemper
4.48 Division and sale
4.49 Exclusion order (Matrimonial Homes (Family Protection) (Scotland) Act 1981, section 4 and Civil Partnership Act 2004, section 104) – applications to pursue
4.50 Exclusion order (Matrimonial Homes (Family Protection) (Scotland) Act 1981, section 4 and Civil Partnership Act 2004, section 104) – applications to defend
4.51 Applications for legal aid by curators ad litem for children
4.52 Interdicts, power of arrest and non-harassment orders
4.53 Interdicts (including non-molestation orders) – applications to pursue
4.54 Interdicts (including non-molestation orders) – applications to defend
4.55 Matrimonial, domestic and relevant interdicts – applications to pursue
4.56 Matrimonial, domestic and relevant interdicts – applications to defend
4.57 Breach of interim interdicts – applications to pursue
4.58 Breach of interim interdicts – applications to defend
4.59 Power of arrest – applications to pursue
4.60 Power of arrest – applications to defend
4.61 Non-harassment orders – applications to pursue
4.62 Non-harassment orders – applications to defend
4.63 Applications to revoke or vary an existing non-harassment order
4.64 Reparation
4.65 All reparation cases
4.66 Reparation – road traffic accidents
4.67 Uninsured drivers
4.68 Reparation – accidents at work
4.69 Reparation – industrial disease
4.70 Reparation – tripping cases
4.71 Reparation – professional negligence cases
4.72 Reparation – condensation or dampness claims
4.73 Reparation – criminal injuries
4.74 Reparation – MRSA
4.75 Reparation – Court of Session cases
4.76 Actions raised under the Personal Injury Rules

4.76A Petitions for Judicial Review

4.76B Petitions for Judicial Review - General

4.76C Petitions for Judicial Review - Minimun Requirements for Applications

4.76D Legal aid for Judicial Review of SLAB decision - processes
4.77 Miscellaneous other cases
4.78 Wider public interest
4.79 Actions of payment – applications to pursue
4.80 Actions of payment – applications to defend
4.81 Actions for payment by HM Revenue and Customs
4.82 Evidential requirements for defence of payment action
4.83 Actions of reduction – applications to pursue
4.84 Actions of reduction – applications to defend
4.85 Bonds of caution
4.86 Caution for expenses
4.87 Bonds of caution – adults with incapacity
4.88 Safeguarders – Adults with Incapacity (Scotland) Act 2000
4.89 Fatal Accident Inquiries
4.90 Applications for legal aid for appellate proceedings
4.91 Appellate proceedings in general

4.91A Judicial Review - Appeal against the refusal/restricion of permission
4.92 Appeals to the Supreme Court of the United Kingdom
4.93 Applications for legal aid for licensing appeals under the Civic Government (Scotland) Act 1982
4.94 Applications for legal aid for appeals to the Court of Session from the First Tier and Upper Tribunal.
4.95 Applications for judicial review of decisions taken by the First Tier Tribunal and Upper Tribunal
4.96 Applications for appeal proceedings before the Social Security Commissioners
4.97 Applications for legal aid for actions of lawburrows
4.98 Hague convention on international child abduction
4.99 European convention on the custody of children
4.100 European judgements convention
4.101 Maintenance Orders (Reciprocal Enforcement) Act 1972
4.102 Cross-border disputes within the European Union
4.103 Council Regulation(EC) No 4/2009 relating to maintenance obligations
4.104 Applications by children
4.105 All applications
4.106 What we will consider in deciding if someone should apply on a child’s behalf
4.107 Proceedings concerning a child’s welfare
4.108 Cases where there might be no added welfare benefit to the child in being represented separately from a parent or guardian
4.109 The child’s age
4.110 Defamation
4.111 Criteria to be met
4.112 Probable cause
4.113 Reasonableness
4.114 Financial eligibility
4.115 Direction criteria
4.116 Assessing the question of effective representation
4.117 Is any publicly funded help available if civil legal aid isn’t available?
4.118 Mortgage rights proceedings – Home Owner and Debtor Protection (Scotland) Act 2010 – applications to defend proceedings
4.119 Background
4.120 Evidential requirements
4.121 Proceeds of Crime

4.122 Private sector tenancies – including eviction proceedings in the First-tier Tribunal for Scotland (Housing and Property Chamber)

 

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Unless otherwise stated, "the Act" or "the 1986 Act" means the Legal Aid (Scotland) Act 1986, and “the regulations” means the Civil Legal Aid (Scotland) Regulations 2002.


This chapter contains guidance on how we assess the merits of different types of case, and the information we would normally expect to see to support an application. However, we consider each case on its own merits and we will not necessarily refuse an application because it does not contain all the documentation listed for that type of case.


4.1 Divorce, civil partnership, cohabitees and family matters

NOTE
This section (paragraphs 4.1 to 4.51) has been amended throughout, in November 2006, to reflect changes in family law and include civil partnerships. Where, for example, the only change to a paragraph is the addition of the words “or civil partnership”, this has not been marked individually as a change.

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4.2 Court of Session consistorial cases

Only occasionally will it be reasonable to grant civil legal aid for consistorial proceedings in the Court of Session. These cases can generally be dealt with in the sheriff court. Including a large financial claim does not necessarily mean that a case has sufficient complexity for the Court of Session. Given the volume of case law that has developed under the Family Law (Scotland) Act 1985, cases justifying Court of Session proceedings should be rare. Factors we may take into account include

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4.3 Cross actions of divorce, dissolution of civil partnership, residence, etc

NOTE
Amended April 2007

Where the parties to a marriage or civil partnership agree the marriage or civil partnership has irretrievably broken down, but are only disputing the cause, defences on the merits and cross actions should not be encouraged. We will not grant legal aid for a cross action of divorce or dissolution of civil partnership where the applicant is not defending the other party’s action on the merits. There may be cases where we would consider a cross action reasonable, if the outcome of ancillary matters is affected.
We will not grant legal aid for a defender to counterclaim divorce or dissolution of civil partnership, as the case may be.



4.4 Actions of divorce or dissolution of civil partnership – applications to pursue

NOTE
Amended April 2007

This section applies to all actions of divorce or dissolution of civil partnership where the applicant is the pursuer.

Section 8(3) of the Civil Evidence (Scotland) Act 1988 (the 1988 Act) requires that evidence establishing the grounds of an action of divorce or dissolution of civil partnership must consist of or include evidence other than that of a party to the marriage or civil partnership. This is subject to the terms of section 8(4), which lists circumstances where these rules of evidence do not apply.

We would always expect to see a statement of the applicant that speaks to the breakdown of the marriage or civil partnership, as well as appropriate evidence from someone not a party to the marriage or civil partnership. If no such supporting evidence is available, you should give a full explanation.

Where the proposed ground of divorce or dissolution is that an interim gender recognition certificate has been issued to either party in terms of the Gender Recognition Act 2004,

Where you are seeking ancillary craves in relation to financial provision, orders in relation to children or other competent orders in an action based on this ground, we need the usual supporting third party statements or documentary evidence.

NOTE
Paragraph added April 2007

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4.5 Actions of divorce or dissolution of civil partnership – applications to defend

This section applies to all actions of divorce or dissolution of civil partnership where the applicant is the defender.

A bare denial of the pursuer’s averments is rarely satisfactory. If the pursuer’s averments are specific, the applicant should be able to answer them in detail.

A partial denial, even if well supported, is not enough to establish probable cause for a defence on the merits if the applicant admits, or at least fails to deny, averments that would still give grounds for divorce or dissolution.

We need

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4.6 Divorce or dissolution of civil partnership – fault-based actions where there are no ancillary craves – pursuer

NOTE
Amended April 2007

It must be shown that

Examples of situations where there may be a benefit to an applicant from getting a divorce or dissolution on a fault-based ground, despite the absence of ancillary craves, might include:

These are examples only and are not in any way exhaustive of the circumstances where it would be appropriate to make legal aid available. We will consider any reason put forward by an applicant who wishes to proceed with an immediate divorce or dissolution.

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4.7 Divorce or dissolution of civil partnership– one year separation with consent – applications to pursue

NOTE
Amended August 2007 and March 2009

It should be made clear in the application that the applicant is not able to raise an action of divorce or dissolution under the simplified procedure.

If an applicant is seeking divorce based on one year’s separation and there are no ancillary craves, we do not need to see statements from the applicant, supporting statements, other evidence or letters of consent. Instead, you should select the box against the statement that there is support for the period of separation and consent from the opponent to the action when completing the application.


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4.8 Divorce or dissolution of civil partnership– one year separation with consent – applications to defend

NOTE
Amended April 2007

Since it is incompetent for the court to pronounce decree of divorce or dissolution where the defender withdraws their consent, we will not consider any such applications.

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4.9 Divorce or dissolution of civil partnership – two years’ separation – applications to pursue

NOTE
Amended August 2007 and March 2009

It should be made clear in the application that the applicant is not able to raise an action of divorce or dissolution under the simplified procedure.

If an applicant is seeking divorce based on two years’ separation and there are no ancillary craves, we do not need to see statements from the applicant, supporting statements or other evidence. Instead, you should select the box against the statement that there is support for the period of separation when completing the application.


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4.10 Divorce or dissolution of civil partnership – two years’ separation – applications to defend

NOTE
Amended April 2007

A defence can be taken on the ground that the parties have not been separated for two years. You should include a supporting statement confirming the actual date and duration of separation.

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4.11 Divorce or dissolution of civil partnership – unreasonable behaviour – applications to pursue

NOTE
Amended April 2007

Irretrievable breakdown is established if, since the marriage or civil partnership, the defender has ever behaved in such a way that the pursuer cannot reasonably be expected to cohabit with him or her. The behaviour may be active or passive.

If the applicant is not seeking ancillary craves, they will need to show there is a direct benefit from an immediate action of divorce or dissolution as opposed to waiting for the relevant period of separation to elapse. This issue of reasonableness is covered in paragraph 4.6.

Our evidential requirements are:

(a) A statement from the applicant showing the marriage or civil partnership has broken down as a direct result of the opponent’s behaviour, and that the opponent has acted in such a way that the pursuer cannot reasonably be expected to continue to live with them.

(b) Evidence of unreasonable behaviour from a person other than a party to the marriage or civil partnership:

(c) In cases involving domestic violence, a statement from someone who can speak to the applicant’s allegations of violence or can speak to seeing bruising on the applicant or other evidence of violence, is acceptable.

Witness statements in such cases should make clear which incidents the witness has observed directly and those which are hearsay.

A medical report is optional, but may be essential if there is no other evidence available. To be of evidential value, it should speak to some treatment needed by the applicant, for either physical or mental health, attributed to the behaviour of the opponent.

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4.12 Divorce or dissolution of civil partnership – unreasonable behaviour – applications to defend

See paragraph 4.5.

A statement from the applicant dealing in detail with the pursuer’s specific averments of behaviour, and a supporting statement, if available, should be provided.

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4.13 Divorce or dissolution of civil partnership – adultery – applications to pursue

NOTE
Amended April 2007

See paragraph 4.4.

In the case of divorce actions, we need a statement from the applicant showing the marriage has broken down irretrievably because of adultery.

Evidence of adultery, from someone not a party to the marriage, must also be provided. Examples of such evidence are:

In the case of dissolution of a civil partnership, adultery is not a ground of dissolution so we will not grant legal aid to pursue actions of dissolution based on adultery.

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4.14 Divorce or dissolution of civil partnership – adultery – applications to defend

NOTE
Amended April 2007

See paragraph 4.5.

In the case of divorce actions, a statement from the applicant answering the averments contained in the writ and a supporting statement, if available, from a witness should be provided. If no supporting evidence is available then you should give a full and detailed explanation for this. If the adultery allegedly took place with a named individual, you should produce a statement from that person which supports the applicant’s denials.

For dissolution of a civil partnership, as adultery is not a ground of dissolution a party is unlikely to have to defend such an action. In the unlikely event that such an action is warranted, we will accept an application to defend it. You should refer in the application to section 117 of the Civil Partnership Act 2004, which makes it clear that adultery is not an available ground for dissolution.

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4.15 Divorce or dissolution of civil partnership– issue of interim gender recognition certificate – applications to pursue

NOTE
Paragraph added April 2007

It should be made clear in the application that the applicant is not able to raise an action of divorce or dissolution under the simplified procedure.
Our evidential requirements are:

(a) a statement by the applicant setting out details of the date of marriage or civil partnership, showing that an interim gender recognition certificate under the Gender Recognition Act 2004 has been issued to either party after the date of marriage or civil partnership, the fact that the applicant is seeking a divorce or dissolution as a result, and setting out the position relating to children, ancillary orders etc

(b) a copy of the interim gender recognition certificate.

We do not need a third party statement speaking to the ground of divorce or dissolution for this ground. We consider the interim certificate itself sufficient for the Civil Evidence (Scotland) Act 1988. Where, however, there are ancillary craves for financial provision or in relation to children, you should provide the usual supporting statements in relation to those craves.

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4.16 Divorce or dissolution of civil partnership– issue of interim gender recognition certificate – applications to defend

NOTE
Paragraph added April 2007

A defence can be taken on the ground that an interim gender recognition certificate has not been issued.

Our evidential requirements are:

(a) the applicant’s statement explaining why they believe an interim gender recognition certificate has not been issued to the opponent or is not a valid certificate

(b) a letter from the Gender Recognition Panel named on the certificate commenting on whether the certificate lodged by the opponent is genuine.

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4.17 Orders for financial provision – married couples and civil partners

NOTE
Amended April 2007

The evidential requirements set out in paragraph 4.17 apply to all applications relating to orders for financial provision. We need additional information, shown below, for some types of order.

The Civil Partnership Act 2004 has amended the Family Law (Scotland) Act 1985 so that civil partners may make claims for the same types of financial provision, and on the same terms, as are available to married couples under the 1985 Act. This section deals with the requirements for orders for financial provision for both married couples and civil partners.

Paragraph 4.26 addresses the requirements for orders for financial provision for cohabitees in terms of the Family Law (Scotland) Act 2006.

Before granting civil legal aid, we need to be satisfied that matrimonial or partnership property exists to satisfy the orders for financial provision sought. All such applications should therefore include:

Where no such information is available, the applicant’s statement should contain an explanation for this.

This section gives information about the general evidential requirements for applications about orders for financial provision. You should also refer to the individual guidelines covering specific orders.

Applications should include:

The evidential requirements set out in paragraph 4.17 apply to all applications relating to orders for financial provision. We need additional information, shown below, for some types of order.

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4.18 Capital sum order

An order for payment of a capital sum will relate to a specified sum of money that can be paid either by instalments or in a lump sum. Additional information that should be provided in support of such a claim includes:

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4.19 Transfer of property order

Additional information that should be provided in support of an application for a transfer of property order includes:

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4.20 Periodical allowance order

Additional information that should be provided in support of a periodical allowance order includes:

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4.21 Earmarking order

Additional information that should be provided in support of any request for an earmarking order includes:

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4.22 Incidental order in terms of section 14(2) of the Family Law (Scotland) Act 1985

An incidental order is defined as being one or more of those orders set out in sub-sections a to k of section 14(2) of the 1985 Act. These include orders:

Additional information that needs to be produced in support of such an order includes:

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4.23 Pension sharing orders

Part IV of the Welfare Reform and Pensions Act 1999 introduced the concept of pension sharing into financial provision on divorce or dissolution of civil partnership. The provisions, which apply to divorce or dissolution of civil partnership actions commenced on or after 1 December 2000, can result in a pension scheme member’s spouse or civil partner having their own independent pension rights created.

As a request for a pension sharing order is made by a separate crave in the pleadings, the applicant must apply for legal aid to pursue or defend such an order.

Where the value of a pension is low – for example, £5,000 or less – it is unlikely to be reasonable to grant legal aid to pursue an order because the overall costs involved would be disproportionate to any benefit.

If the decision to seek a pension sharing order is taken after legal aid has already been granted for other matrimonial or civil partnership matters, you should send us a formal request to amend the legal aid certificate.

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4.24 Employing expert witnesses

For a solicitor, the first stage of advising on pension sharing is to gather information about the value of all the matrimonial or partnership assets, including any pensions. Guidance given to the Judicial Procedure Committee of the Law Society about the requirements of the financial services legislation is clear that the first stage is not of itself investment business and can be undertaken by a solicitor.

The second stage involves giving advice to a client to decide whether the pension should be shared, an earmarking order sought or the value of the pension offset against other matrimonial or partnership property. Unless you are licensed to carry on incidental investment business or have Financial Services Authority authorisation, your role is restricted to commenting on advice from independent financial advisers on how best to deal with matrimonial or partnership investment assets. You should get our approval before instructing an independent financial adviser to provide advice at this stage. If we have granted legal aid in connection with financial craves, it would not be necessary to extend the legal aid before asking for sanction for this expert report.

The third stage of advice only applies if the client has decided on pension sharing. Advice on how to implement pension sharing and, in particular, whether to leave the relevant share in the existing pension scheme or to take it out to put into a separate scheme, is specialist advice needing input from an expert. You should get our approval before instructing an independent financial adviser to provide advice at this stage.
Sanction can only be granted for a report advising on implementation if legal aid has been granted for a pension sharing order.

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4.25 Implementation of a pension sharing order

If neither party is able or willing to meet the costs of the pension fund administrators for setting up and implementing a pension sharing order, the costs can be deducted from the fund itself. Because of that, we will only meet the administrators’ costs in exceptional circumstances, that is, where an entire settlement would collapse because neither party is able to meet the costs.

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4.26 Orders for financial provision and provision on intestacy – cohabitees – applications to pursue

NOTE
Section added April 2007

Sections 28 and 29 of the Family Law (Scotland) Act 2006 make new provision from 4 May 2006 for rights of heterosexual or same-sex cohabitees to financial provision on separation and rights on intestacy.
The provisions do not apply where the separation or the death occurred before 4 May 2006. We will not grant legal aid to pursue applications where this is the case.

We need to be satisfied that the applicant can properly be described as a cohabitee of the opponent according to the test set out in section 25 of the Act. The applicant needs to show us that the couple are or were living together as if they were husband or wife or civil partners, taking into account the length of the period living together, the nature of the relationship, and the nature and extent of any financial arrangements during that period.

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4.27 Section 28 – financial provision on separation

NOTE
Section added April 2007

A cohabitee may apply to the court for a capital sum or an order to pay towards any economic burden of caring for a child of the relationship. Property transfer orders are not competent.

Claims of this type must be made not later than one year after the date of separation.
In deciding whether an award is justified, the court assesses

The court also has to consider the extent to which

Our evidential requirements are:

(a) A statement from the applicant which

(b) A supporting third party statement and/or supporting documentary evidence or an explanation as to why none is available.

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4.28 Section 29 – provision on intestacy

NOTE
Section added April 2007

Where one of a cohabiting couple dies intestate after 4 May 2006, the survivor can apply to the court for an order for a capital sum or transfer of property out of the net intestate estate.

Claims of this type must be made within six months of the death.

In deciding whether an award is justified, the court assesses

The court cannot award the survivor more than they would have received had they been a spouse or civil partner of the deceased.

Our evidential requirements are:

(a) A statement from the applicant

(b) A supporting third party statement and/or supporting documentary evidence or an explanation as to why none is available.

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4.29 Orders for financial provision and provision on intestacy – cohabitees – applications to defend

NOTE
Section added April 2007

Paragraph 4.26 sets out the types of orders which a cohabitee may pursue for financial provision and provision on intestacy, and the basis upon which the court may make an order.

Where legal aid is sought to defend such proceedings, our evidential requirements are:

(a) a copy of the writ to be defended.

(b) a statement of the applicant, addressing the pleadings in the writ and giving facts and circumstances that support a position that the statutory requirements for the order sought are not met.

(c) a supporting third party statement and/or supporting documentary evidence or an explanation as to why none is available.

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4.30 Proceedings arising from the Gender Recognition Act 2004 – applications to pursue

NOTE
Section added April 2007

The Gender Recognition Act 2004 allows people over eighteen to apply to a Gender Recognition Panel for a gender recognition certificate, the effect of which is that their gender, for legal purposes, becomes the gender indicated in the certificate.

To grant a certificate, the Panel must be satisfied that the applicant

If the applicant is unmarried or not a party to a civil partnership, then the certificate, if granted, will be a full certificate which immediately changes their gender.

If, however, the person is married or a party to a civil partnership, the certificate will be an interim certificate. The issue of an interim certificate provides a ground for divorce or dissolution for either party to the marriage or civil partnership, and if divorce or dissolution is then granted on that basis, the court granting it will issue a full certificate.

Paragraphs 4.15 and 4.16 deal with our evidential requirements for applications to pursue or defend an action of divorce or dissolution of civil partnership based on the issue of an interim gender recognition certificate.

Paragraphs 4.31 to 4.33 deal with our evidential requirements for applications concerning other types of litigation which the Act may give rise to.

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4.31 Section 6 – correction of errors in full gender recognition certificate

NOTE
Section added April 2007

A full gender recognition certificate issued by a court on granting decree of divorce or dissolution, based on the issue of an interim certificate, may contain errors. If so, you can apply by minute to the court which issued the full certificate for correction of it.

Our evidential requirements are:

(a) a statement of the applicant addressing the nature of the errors, the proposed corrections and the reasons why these are warranted and necessary

(b) a copy of the erroneous gender recognition certificate

(c) a supporting witness statement and/or documentary evidence, or an explanation as to why none is available.

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4.32 Section 8 – appeal against refusal of gender recognition certificate

NOTE
Section added April 2007

An applicant to a Gender Recognition Panel may appeal on a point of law to the Court of Session against a decision by the panel to reject the application.
Our evidential requirements are:

(a) a statement of the applicant addressing the practical implications for them of the refusal

(b) a copy of the panel’s reasons for refusal

(c) copies of supporting materials lodged with the application to the panel

(d) a note on prospects from you.

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4.33 Section 18 – orders where expectations are defeated

NOTE
Section added April 2007

Where the disposition or devolution of any property under a will or other instrument made on or after 4 April 2005 is different from what it would be had a person’s gender not become the acquired gender under the Act, they may apply to the Court of Session for an order on the ground of being adversely affected by the different disposition or devolution of the property. The court may make an order it considers appropriate including payment of a lump sum, transfer of property, settlement of property or acquisition of property and transfer of it to the applicant.

Our evidential requirements are:

(a) the applicant’s statement addressing what they stood to gain before the change in gender, compared to the situation after, and an explanation of the orders sought with details of why those are justified

(b) a supporting witness statement and/or documentary evidence, or an explanation as to why none is available

(c) a copy of the gender recognition certificate

(d) a copy of the will or instrument.

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4.34 Adoption and permanence orders

Where you represent a client in adoption or permanence order proceedings where there is more than one child involved you only require to submit one application in respect of your client.  In the application you should give details of the child or children who are the subject of any proceedings. There is no need to submit one application for each child involved in the case(s) 

This move to a single grant will also help you when preparing an account. At present costs have to be apportioned across a number of accounts and this can be time consuming and complex for all involved. This streamlined approach removes the need for this work.

When considering applications for legal aid for adoption orders, or to oppose adoption orders or permanence orders, the child’s welfare is the paramount consideration.

Information that should be provided in support of an application includes:

If the application is to get an adoption order and the natural parent’s consent is to be dispensed with, you should show us that grounds for dispensation exist, for example, that consent has been unreasonably withheld.

Applications for legal aid to oppose either an adoption order or permanence order will usually be granted because of the importance of the matter to both the child and the natural parents. These orders change a child’s status for their whole life.

In cases of adoption by a step-parent where there has been remarriage, the court does not require joint applications by husband and wife, only applications from the step-parent. If, however, both parents are adoptive parents then applications from both parties are still required. Separate applications are needed for each child to be adopted.

If the person to be adopted is of or over the age of 12 years, his or her consent to the order is necessary and direct evidence of this should be included in the legal aid application.

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4.35 Orders relating to parental responsibilities and parental rights

NOTE
Amended April 2007

The evidential requirements set out in 4.35 apply to all applications relating to parental responsibilities and rights. We need further information, shown below, for some types of order.

The guidance here applies equally if the applicant is proposing to seek an order by way of a counterclaim.

Section 11 of the Children (Scotland) Act 1995 permits the Court of Session and the sheriff court to make orders in relation to parental responsibilities and parental rights.  The 1995 Act gives guidance to the court in considering whether to make a section 11 order.  It must have regard to three principles set out in section 11(7): the welfare principle, the no-order presumption and the views of the child.

You should pay particular regard to whether the appropriate procedure is by initial writ or by minute in an existing process.  We see many applications to pursue an independent action by initial writ when the only competent procedure is by minute in an existing process.  Broadly speaking, where a couple have divorced and one or other or both then seek section 11 orders, this ought to be done by minute in the divorce process even where no section 11 orders were granted at the time of divorce.  (See Ordinary Cause Rule 33.44, comments in McEwen v McEwen 2001 SLT (Sh. Ct.) 8, and sections 11 and 42(3) of the Family Law Act 1986).  Ordinary Cause Rule 33.65 makes similar provision for applications after decree in actions which are not actions for divorce.

All legal aid applications for orders relating to parental responsibilities and rights must

•    address the principles, referred to above, that the court will have regard to when considering whether to make a section 11 order

•    to meet the reasonableness test, address the extent to which there have been negotiations to resolve the dispute, or attempts to limit the scope of the dispute between the parties, and provide detailed information to show why these negotiations have failed, including providing copies of any relevant correspondence which may disclose attempts made to resolve matters. We are unlikely to consider it reasonable to grant any application for legal aid from a party who has not engaged in genuine attempts to resolve the issue without litigation and who did not enter into such negotiations with a realistic view of what the possible terms of settlement of the dispute could be. We will take into account the tone of any correspondence entered into in considering whether reasonable attempts have been made to reach a settlement.  We will not consider overly robust or combative correspondence to be supportive of reasonable attempts being made to settle matters without litigation. This information is not needed where we have granted special urgency cover to a pursuer to raise an action for contact in situations where there has been a recent cessation of contact or where parties have recently separated and no offer of contact has been made – see paragraph 6.6B 

•    if the child is subject to a supervision requirement, explain this and any conditions attached

•    if the terms of the order for which legal aid is sought will be inconsistent with the terms of the supervision requirement, address the practical effect of the order, and why it is reasonable to grant legal aid

•    the same applies if the proposed court order conflicts with other types of order, for example, a child protection order or a parental responsibilities order transferring parental rights and responsibilities to a local authority.


As the welfare of the child is the court’s paramount consideration, the applicant’s statement should provide detailed information about


•    the proposed arrangements for looking after the child

•    how the proposed proceedings will safeguard or promote the child’s welfare

•    why it is necessary to bring proceedings, since the court will only make an order where it considers that this would be better for the child than not making an order 

•    whether the child has expressed any views on the matter concerned, as the court may get and have regard to the child’s views, depending on their age and maturity.


It follows that the statements provided should not simply address why the applicant considers that the position they are adopting in the dispute is reasonable unless this can clearly be shown to be directly linked to the child’s welfare. Issues of dispute, including those concerning the breakdown of any relationship between the parties, that may have, at best, only peripheral relevance to the welfare of the child should not be supplied as though supportive of the applicant’s position.   


Supporting evidence should be produced where it is available and will normally consist of


•    at least, a statement from an independent witness speaking to the child’s welfare

•    additional information in the form of reports from the Social Work Department, medical practitioner etc. 


If no supporting evidence is produced, you should explain why not.

Although the welfare of the child is the court’s paramount consideration, the case of White v White established that a father with parental rights (through marriage, agreement, court order or by registration as father on the birth certificate after 4 May 2006) should have a right to contact.

 
•    This does not subvert the welfare principle, but that principle must be balanced against the rights of the father in all applications involving fathers with parental rights. 

•    If there is nothing to show that contact would be against the child’s best interests, we do not need detailed information to assess applications by fathers with parental rights.

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4.36 Residence order

The application should make it clear that residence is in dispute. The need to obtain the order must be set out. Information about threats or attempts to remove the child or children from applicant’s care should be given. The application should give details setting out the extent of the parental rights and responsibilities of the parties involved in the action excluding the mother unless her rights and responsibilities have been removed. Details need to be given about all attempts made to settle the dispute without litigation. If there is, or has been, any police or social work involvement details on this issue should be provided which should include information about any protective orders affecting the child that may be in place.

If a child is already in the care of the applicant, we do not need supporting evidence of the arrangements for looking after the child or other details about the child’s welfare. Where, however, the applicant’s care of the child is recent or tenuous, or where it is sought to alter the status quo, you should provide supporting evidence, or explain why it is not available. If the child is in the care of the opponent information should be given about the opponent’s ability to care for the child.

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4.37 Defending a residence order

The applicant’s statement should

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4.38 Contact order

The applicant’s statement must

•    give full details about all attempts made to settle the dispute without litigation which must include providing copies of all correspondence entered into between the parties other than in situations where we have granted special urgency cover to raise an action for contact because there has been a recent cessation of contact or where parties have recently separated and no offer of contact has been made – see paragraph 6.6B.  Full details are needed about any reasons given by the opponent for withholding contact

•    address whether mediation has been considered or attempted.  If it has not been considered address the reasons for this other than in situations where we have granted special urgency cover to raise an action for contact because there has been a recent cessation of contact or where parties have recently separated and no offer of contact has been made – see paragraph 6.6B.  If mediation has been attempted details should be given of the outcome and why litigation is considered necessary 

•    provide information about any offers of contact made together with reasons explaining why the contact offered is not sufficient and an action is still needed

•    provide details of the arrangements for the welfare of the child during contact periods

•    show whether any contact is being granted and whether the contact sought is residential or non-residential

•    give details of when contact last took place and what contact it is realistically expected or possible to obtain in the short to mid term

•    show what attempts have been made to negotiate contact and with what result

•    provide information about any lifestyle factors that may impact on any request made for contact including but not restricted to, allegations of alcohol or drug abuse, health problems or abuse of the opponent or other members of the opponent’s household

•    address any concerns that may have been expressed by the opponent about contact taking place including but not restricted to, allegations of alcohol or drug abuse, health problems or abuse of the opponent or other members of the opponent’s household give the child’s views, if known and likely to carry weight.

The applicant should provide supporting evidence of the proposed arrangements for the child’s welfare during contact.  This is particularly important if it appears that they may have difficulty in looking after the child – for example, if the child is very young or contact has not been exercised for a considerable time.  If there is, or has been, any police or social work involvement details on this issue must be provided including information about any protective orders affecting the child that may be in place together with any reports that may have been obtained in this connection.

Where contact is taking place, but the applicant is seeking more contact than either the opponent is prepared to agree to, or is envisaged in terms of any current order of court or agreement, we will give very careful consideration not only to the merits of the case that the applicant puts, but also the overall reasonableness of the application.  Seeking increased contact at potentially significant expense to the public purse must be assessed as reasonable quite apart from whether there is a stateable basis for doing so.   Factors pointing away from reasonableness would include non-material increases or changes, wholly unrealistic or unreasonable levels of contact or changes, and changes to contact arrangements relatively soon after other arrangements were made or ordered.

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4.39 Defending a contact order

The applicant’s statement must

   
•    specify whether the request for contact is being opposed fully or only in relation to the frequency of the contact sought.

•    explain why the pursuer’s proposals should be opposed, either because they may adversely affect the child’s welfare, or because no court order is needed

•    explain why contact is not is the child’s best interests, if this is being argued.  This will include giving details of any alcohol or drug abuse, health problems or domestic abuse by the opponent or other members of the opponent’s household

•    explain why contact is opposed in its entirety and why no offer of even modest contact is being made, if applicable

•    where the defence is opposing contact in its entirety, the prospects for success rating given must be assessed against this and detailed information should be given about any contact previously in place and what it is considered will be the court’s view on supervised contact.

•    give the child’s views, if known and likely to carry weight

•    give details of any existing contact arrangement.

•    give details why any previous arrangements for contact may have broken down

•    give details of all attempts made to settle the dispute by agreement which must include providing copies of all correspondence entered into between the parties.  An action being raised will not be viewed as a bar on attempts being made to achieve a negotiated settlement

•    address whether mediation has been considered or attempted.  If it has not been considered address the reasons for this.  If it has been attempted details should be given of the outcome and why litigation is considered necessary 

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4.40 An order removing parental responsibilities or parental rights

The applicant’s statement must explain exactly which responsibilities and rights are to be removed. This should be supported by other evidence, such as a statement from an independent witness or a report from the Social Work Department or medical practitioner. Information about the opponents existing, or recent, exercise of parental rights and responsibilities should also be given.

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4.41 Defending an order removing parental responsibilities and parental rights

The applicant’s statement should address why the order sought by the pursuer should be opposed. The statement should show to what extent parental responsibilities and rights have been exercised until now.

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4.42 An order imposing parental responsibilities and parental rights

When sought in conjunction with other orders – for example, residence or contact – the applicant’s statement should address why this order is necessary as well as the other(s). The need for the order should be addressed together with details of attempts made settle matters through a section 4 agreement.

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4.43 Defending an order imposing parental responsibilities and parental rights

The applicant’s statement should

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4.44 Specific issue order

The applicant’s statement should

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4.45 Defending a specific issue order

The applicant’s statement should show why the order sought should be opposed with reference to the welfare of the child, the fact that no such order is required and the child’s views, if appropriate.

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4.46 Variation of an order

The applicant’s statement should

A supporting statement or other form of supporting information should be provided together with a copy of the interlocutor to be varied.

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4.47 Minute for failure to obtemper

The applicant’s statement should

A supporting statement or other form of supporting information should be provided together with a copy of the order to be obtempered.

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4.48 Division and sale

NOTE
Amended April 2007

The applicant’s statement should give details of

Supporting information should include:

In actions involving spouses or civil partners, consideration should be given to the Matrimonial Homes (Family Protection) (Scotland) Act 1981, section 19, and the Civil Partnership Act 2004, section 110. Under those Acts, the court may refuse to grant an order for division and sale or may postpone an order for as long as it considers reasonable. These provisions cannot be invoked after the dissolution of the marriage or civil partnership. In such cases the information provided must:

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4.49 Exclusion order (Matrimonial Homes (Family Protection) (Scotland) Act 1981, section 4 and Civil Partnership Act 2004, section 104) – applications to pursue

NOTE
Amended April 2007

To establish probable cause there must be evidence that

Section 4(3) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (the 1981 Act) specifically states that such an order will not be made if it appears to the court that making the order would be unjustified or unreasonable having regard to all the circumstances of the case, including matters specified in section 3(3)(a) to (e) of the 1981 Act.
Section 104(3) of the Civil Partnership Act 2004 makes similar provision in relation to civil partners.

We will, therefore, take into account:

The applicant’s statement must

Supporting evidence should be produced, if available. If no supporting evidence is available, you should specifically indicate this and explain why not. Supporting evidence can include, for example

Provided enough evidence has been produced to show a need for an exclusion order, the applicant does not need to give any further information where additional remedies ancillary to an exclusion order are requested, such as:

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4.50 Exclusion order (Matrimonial Homes (Family Protection) (Scotland) Act 1981, section 4 and Civil Partnership Act 2004, section 104) – applications to defend

NOTE
Amended April 2007

To satisfy us on probable cause we will expect the applicant

Where the applicant denies particularly serious conduct or threatened or reasonably apprehended conduct and/or has no alternative accommodation, the test of reasonableness may readily be satisfied.

The applicant’s statement should:

You should produce supporting evidence, such as a statement by a third party. If it is not available, you should specifically indicate this and explain why not.

You should produce a copy of the initial writ or counterclaim seeking the exclusion order.

Provided you produce sufficient evidence to show it is reasonable and necessary to defend the exclusion order sought, you do not need to provide further information to show it is reasonable and necessary to defend any orders ancillary to the exclusion order sought by the opponent such as

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4.51 Applications for legal aid by curators ad litem for children

In an action where the sheriff appoints a curator ad litem to a child, at the first instance, unless the court directs otherwise, the pursuer is responsible for the curator’s fees and outlays. These can be incurred during the period from the curator’s appointment until

(a) they lodge a minute stating that they do not intend to lodge defences or enter the process

(b) they decide to instruct the lodging of defences or a minute adopting defences already lodged, or

(c) their appointment is discharged before either (a) or (b) occurs.

Following the initial enquiries, if the curator considers they should enter the process you can ask for an increase in authorised expenditure under advice and assistance to cover the costs of preparing and submitting an application for civil legal aid (see Part III chapter 5, template 19, or Part III paragraph 5.40).

In these cases, we consider that probable cause can generally be established if the applicant shows that they are entitled to enter the proceedings on the child's behalf. The application should be made in the name of the child and should make it clear that the person is acting in their capacity as curator ad litem for the child.

To show reasonableness, the applicant should focus on the need for the child's interests to be separately represented in the proceedings. An application for legal aid should address such matters as –

These are only examples, not an exhaustive list. It is not enough to submit in support of an application for legal aid only a copy of the interlocutor of appointment and a statement from the curator that "I have been appointed curator and therefore need legal aid." Irrespective of the terms of appointment, the statutory tests of probable cause and reasonableness must be addressed and met before a grant can be made.

Our evidential requirements are:

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4.52 Interdicts, power of arrest and non-harassment orders

4.53 Interdicts (including non-molestation orders) – applications to pursue

To establish probable cause there must be evidence:

It should not be assumed that we would be bound to grant the application just because:

In considering whether it is reasonable to make legal aid available in the circumstances of the case:

We will be extremely reluctant to commit public funds to minor disputes where the conduct is non-violent, particularly for disputes between neighbours arising out of nuisance or name-calling.

Evidential requirements

(a) The applicant's statement must deal in detail with

You should also show that all other steps have been taken or are inappropriate in the particular circumstances of the case and that court action is therefore necessary. Other steps can include solicitors’ warning letters and involvement of the police. Whether it is reasonable to take steps before initiating court action will depend on the circumstances of each individual case.

(b) Supporting evidence should be produced, if available. If no supporting evidence is available, you should specifically indicate this and explain why not. Supporting evidence can include, for example,

(c) If relevant, copies of correspondence from solicitors about the conduct complained of should be produced and any responses from the opponent or their agent.

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4.54 Interdicts (including non-molestation orders) – applications to defend

To satisfy us on probable cause, we will expect the applicant to provide a full and frank answer to all the pursuer's averments, with a clear explanation why the interdict must be resisted.

Where the applicant denies particularly serious conduct (for example, abuse directed at children or personal violence), the test of reasonableness may readily be satisfied.
Where, however, the conduct complained of is fairly minor, or the terms of the interdict so narrow that it would not hinder the applicant's normal routine, the question of reasonableness must be addressed in some detail – would a private client of moderate but not abundant means incur the cost of a defence in these circumstances?

If the applicant fears the terms of an interdict would unreasonably interfere with the exercise of parental responsibilities, such as contact, it may be reasonable to allow legal aid for a defence.

If the applicant believes the pursuer, once they have an interim, or permanent, interdict, is likely through malice to misuse the decree by bringing unwarranted actions for breach of interdict, they should address this and give details why they believe it.

In some cases, the applicant may not believe the interdict sought is justified, but would be prepared to live with its terms were it not for the prospect of incurring unrestricted liability for the pursuer’s expenses. If, in these circumstances, they are seeking to defend the interdict, we should be given details of the steps that have been taken to reach agreement about expenses.

Evidential requirements

(a) The applicant’s statement should

(b) Supporting evidence should be produced, if available, especially about any assertion that there is a real likelihood that the opponent will abuse the terms of the order sought. If it is not available, you should indicate this and explain why not.

(c) A copy of the initial writ seeking the interdict(s) should be provided.


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4.55 Matrimonial, domestic and relevant interdicts – applications to pursue

NOTE
Amended April 2007

This section refers to interdicts sought in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 sections 14 and 18A, or the Civil Partnership Act 2004, section 113.

A “matrimonial interdict”, as in section 14 of the Matrimonial Homes (Family Protection)(Scotland) Act 1981, denotes an interdict that

A “domestic interdict”, as in section 18A of the Matrimonial Homes (Family Protection)(Scotland) Act 1981, denotes an interdict which is identical in scope to a ‘matrimonial interdict’, but is available in cases where the parties are cohabitees, either heterosexual or same sex.

A “relevant interdict”, as in section 113 of the Civil Partnership Act 2004, denotes an interdict which is identical in scope to a “matrimonial interdict”, but is available in cases where the parties are civil partners.

A power of arrest may be attached to these types of interdict in terms of the Protection from Abuse (Scotland) Act 2001 (see paragraphs 4.59 and 4.60).

Please also refer to paragraph 4.52, on non-matrimonial, non-domestic and non-relevant interdicts.

Evidential requirements

(a) The applicant’s statement should

It should also be shown that all other steps have been taken or are inappropriate in the particular circumstances and that court action is therefore necessary. Other steps can include –

(b) Supporting evidence should be produced, if available. If no supporting evidence is available, you should specifically indicate this, and explain why. Supporting evidence can include, for example:

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4.56 Matrimonial, domestic and relevant interdicts – applications to defend

These refer to the defence of interdicts sought in terms of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, sections 14 and 18A, or the Civil Partnership Act 2004, section 113. Please also refer to paragraph 4.54 on non-matrimonial, non-domestic and non-relevant interdicts.

The applicant’s statement should explain in detail why it is considered necessary to oppose the order(s) in question. If the order(s) sought would not prevent any lawful act by the applicant, we are unlikely to grant legal aid to defend it unless some other good reason is shown.

Supporting evidence should be produced, if available, especially in relation to any assertion that there is a real likelihood the opponent will abuse the terms of the order sought. If no supporting evidence is available, you should specifically indicate this and explain why not.

A copy of the initial writ seeking the interdict should be provided.

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4.57 Breach of interim interdicts – applications to pursue

NOTE
Amended April 2007 and March 2009

Such actions should be fresh proceedings and a fresh civil application is therefore needed.

Some courts, however, allow the applicant to minute in the original process. If so, you must send us an application for amendment or extension.
To establish probable cause, the applicant must show there is a sound legal basis for the proposed action.

In considering whether it is reasonable to make legal aid available, factors we will consider include

Evidential requirements

(a) The applicant’s statement must

(b) Supporting evidence should be produced if available. If no supporting evidence is available, you should specifically indicate this and explain why not. Supporting evidence can include, for example, a statement from another individual who has witnessed the breach or the applicant’s distress or injuries soon after.

(c) A letter from the procurator fiscal confirming that they concur in the raising of the proposed action.

(d) A copy of the interim interdict should be produced along with a certificate of execution of service to confirm that it has been served on the opponent.

NOTE
Paragraphs (c) and (d) added April 2007

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4.58 Breach of interim interdicts – applications to defend

If the pursuer has instigated fresh proceedings, a fresh civil application will be needed to defend the proceedings. Some courts, however, allow a pursuer to minute in the original process. If so, and the defender has legal aid to defend the proceedings in the original process, you should send us an application for amendment or extension.

To establish probable cause, we will expect the applicant to provide a full and frank answer to the pursuer’s averments with a clear explanation why the breach of interdict must be defended. Sufficient information must be produced to show the alleged breach did not take place and that it would therefore be reasonable to defend the action.

Our evidential requirements are:

NOTE
Amended March 2009

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4.59 Power of arrest – applications to pursue

The Protection from Abuse (Scotland) Act 2001 makes it possible for a person (not simply a spouse, civil partner or cohabitee) who is applying for or who has obtained an interdict to protect them from abuse, to apply to the court to attach a power of arrest to that interdict.

A power of arrest can only be attached where it is necessary to protect the applicant from the risk of abuse (section 1(2)(c) 2001 Act). This must, therefore, be clearly shown in the application. We will consider the degree of likely harm.

Even where the applicant is applying for an interdict, they must specify in the statutory statement that they are also seeking a power of arrest.

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4.60 Power of arrest – applications to defend

The Protection from Abuse (Scotland) Act 2001 makes it possible for a person (not simply a spouse, civil partner or cohabitee) who is applying for or who has obtained an interdict to protect them from abuse, to apply to the court to attach a power of arrest to that interdict.

If the applicant

this demonstrates there is probable cause and that it is reasonable to defend the power of arrest. The applicant’s statement does not, therefore, need to address this further.

However, if an interdict has already been granted and a power of arrest is now sought, they will have to address why it is necessary and reasonable to defend such an order.

Our evidential requirements are:

(a) If an interdict is being sought simultaneously, we expect the applicant to state in their statutory statement that they seek to defend the power of arrest in addition to the interdict sought.

(b) If a power of arrest is being sought in relation to an interdict previously granted:

(c) A copy of the initial writ seeking the power of arrest (and interdict, if applicable) should be produced.

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4.61 Non-harassment orders – applications to pursue

The Protection from Harassment Act 1997 (“the 1997 Act”) makes provision for protecting people from harassment and similar conduct. It:

Section 8(1) of the 1997 Act provides that every individual has a right to be free from harassment and, accordingly, a person must not pursue a course of conduct which

“Conduct” is defined as including speech. “Harassment” of a person is defined as including the person’s alarm or distress. “Course of conduct” must involve conduct on at least two occasions.

The Domestic Abuse (Scotland) Act 2011 inserted section 8A into the 1997 Act. This section only applies where the conduct leading to a pursuer bringing the action of harassment amounts to domestic abuse. It differs from section 8 in that it removes the reference to a course of conduct and provides instead that a person must not engage in conduct which amounts to harassment. It also provides an altered definition of conduct to be used when this section is engaged – conduct includes speech and presence in any place or area and may involve behaviour on one or more than one occasion. A breach of a non-harassment order granted under section 8A is a criminal offence.

An actual or apprehended breach of section 8(1) of the 1997 Act may be the subject of an “action of harassment” claim in civil proceedings by a person who is, or may be, a victim of the course of conduct in question.

The remedy sought in an action of harassment may include

While the court may not grant an interdict (or interim interdict) and a non-harassment order in relation to the same matter at the same time, an applicant may seek legal aid to apply for (or defend) both interdict (or interim interdict) and a non-harassment order in the same terms. This allows the court to grant whichever seems appropriate.

Where an action of harassment includes a claim for an award of damages, it may only be brought if it is commenced within three years after

(a) the date on which the alleged harassment ceased or

(a) the date, if later, on which the pursuer became aware or, in the opinion of the court, it would have been reasonably practicable for them in all the circumstances to have become aware, that the defender was the person responsible for the alleged harassment, or the employer or principal of such a person.

This three-year period does not include any time during which the victim of the alleged harassment was under legal disability because of non-age or unsoundness of mind. Further, where the three-year period has expired without an action having been raised it is open to the court, if it seems equitable to do so, to allow the action to be brought.

Evidential requirements

(a) The applicant’s statement should give

You must give us details of the remedies sought in the action for harassment (for example, damages, interdict, non-harassment order).

Where an award of damages is sought, you must give us full details showing that the action was raised within the time limit or that the time limit has not yet expired. If the time limit has expired, the applicant must provide full details of the information that will be presented to the court to persuade it that allowing the action to proceed would be equitable.

(b) Supporting evidence should be produced about the conduct – if this is not available, you should specifically indicate this and explain why not. Supporting evidence can include, for example:

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4.62 Non-harassment orders – applications to defend

Refer also to paragraph 4.61, non-harassment orders – applications to pursue.

Evidential requirements

The applicant’s statement should make it clear whether they deny the pursuer’s allegations in whole or in part and explain the nature and extent of the defence to be advanced.

As well as a defence on the merits of the application, that is, that the conduct is denied, section 8(4) of the 1997 Act lays down three statutory defences. These are that the conduct complained of was:

(a) authorised by, under or by virtue of any enactment or rule of law

(b) pursued for the purpose of preventing or detecting crime or

(c) in the particular circumstances, reasonable.

The proposed defence to the action should, therefore, be made clear in the applicant’s statement and they should provide detailed information to support this.

Supporting evidence from a third party about the defence should also be produced or an explanation why this is not available.

A copy of the initial writ seeking the non-harassment order should be provided.

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4.63 Applications to revoke or vary an existing non-harassment order

The person against whom a non-harassment order has been made, or the person for whose protection the order was made, may apply to the court which made the order for revocation or variation of the order. A fresh civil application must be made.

The minuter must produce –

The defender must produce –

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4.64 Reparation

4.65 All reparation cases

In assessing reasonableness a number of factors will be taken into account including

Evidential requirements – pursuer applications

This section gives information about the general evidential requirements for an application to raise reparation proceedings. You should also refer to the individual guidelines covering specific types of reparation claims. Applications should include:

Evidential requirements – defender applications

Applications for civil legal aid to defend reparation proceedings are far less usual than applications to pursue proceedings. While the information that can be provided in support of each application will vary, certain information should always be provided.

If the applicant wishes to make a counterclaim, the evidential requirements for the counterclaim will be the same as those in pursuer applications.

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4.66 Reparation – road traffic accidents

See also paragraph 4.65 on all reparation cases.

Additional information that should be provided for claims arising from road traffic accidents includes:

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4.67 Uninsured drivers

An application to defend a reparation action arising from a road traffic accident where the defender was an uninsured driver raises several issues on reasonableness. The defender was under a legal obligation to carry, at the very least, third-party, fire and theft insurance. It may be unreasonable to support a defence at public expense when the applicant deliberately failed to avail themselves of an insurance policy which could have supported them.

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4.68 Reparation – accidents at work

See also paragraph 4.65 on all reparation cases.

Additional information that should be provided where an accident has occurred at work includes:

Information about any contractors, sub-contractors, employers or other people who gave instructions, to show that the correct defenders have been identified.

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4.69 Reparation – industrial disease

See also paragraph 4.65 on all reparation cases.

In these cases, it must be shown that the opponents knew or ought to have known of the hazard at the relevant time and had failed to take steps to protect the applicant (or deceased) from the hazard. The specific information that should be provided includes:

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4.70 Reparation – tripping cases

See also paragraph 4.65 on all reparation cases.

To show the opponents knew or ought to have known of any hazard that resulted in the accident, information that needs to be provided includes:

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4.71 Reparation – professional negligence cases

See also paragraph 4.65 on all reparation cases.

Where professional negligence is being claimed it must be shown that the tests set out in the case of Hunter v. Hanley (1955 SC200) have been met.

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4.72 Reparation – condensation or dampness claims

See also paragraph 4.65 on all reparation cases.

Landlords are under a common law obligation to put property let into a habitable or tenantable condition at entry and to maintain it in habitable or tenantable condition during the lease. Most landlords are also now under the statutory implied obligation that rented houses be “fit for human habitation”.

Our evidential requirements are:

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4.73 Reparation – criminal injuries

Where the applicant has the option of pursuing a claim through the Criminal Injuries Compensation Authority (CICA), involving simpler procedures and minimal cost, it may be unreasonable to grant civil legal aid to raise civil proceedings. Claims for damages arising from criminal injuries can involve substantial questions on matters such as prospects of recovery and the applicant’s own conduct. These issues need to be taken into account in assessing the reasonableness test.

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4.74 Reparation – MRSA

See also paragraph 4.65 on all reparation cases.

We also need the following in support of any application for actions for damage where a patient has contracted MRSA during medical treatment:

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4.75 Reparation – Court of Session cases

Proceedings cannot be raised in the Court of Session where the value of the order sought is worth less than £100,000.  Where the value of the order sought is greater than £100,00 you will need to provide sufficient information setting out the value of the claim and how this has been assessed to satisfy us that Court of Session proceedings are appropriate.   This should include information as to why the action could not appropriately be raised in the sheriff court even although the value of the order sought is greater than £100,000 given that the sheriff court also has jurisdiction over that amount.

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4.76 Actions raised under the Personal Injury Rules

Where an action is raised under the Personal Injury Rules and under regulation 18, and a motion is made to sist the cause for legal aid, you should be aware the sist will only be for a fixed period. When the motion is enrolled, the court should be informed

You should apply for civil legal aid as soon as possible after commencement of the first specially urgent step. You should indicate to the court whether there are likely to be any particular complexities on either the merits or the means (for example, in executry claims), which may result in a lengthier assessment period. Wherever possible, you should apply for civil legal aid well before the triennium expires, and avoid using regulation 18.

If you do not give us adequate information, whether about the merits or the means, it may delay our decision and have an impact on the court timetable. It would also be helpful if you would clearly identify that the application relates to the new personal injuries rules.

The timetable requirements for lodging valuations of the claim mean that you should make sanction requests for reports to assist with quantum at as early a stage as possible. Under the Personal Injury Rules both the summons and defences will be extremely brief, and you may therefore have to provide more information to justify a particular report. Likewise, any request to involve senior counsel, or to undertake work of an unusual nature or likely to involve unusually large expenditure (for example, an open commission) should be made as early as possible, and supported with full information. You should refer to chapter 16 for guidance on sanction for experts, counsel and work of an unusual nature or likely to involve unusually large expenditure.

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4.76A Petition for Judicial Review

4.76B Petitions for Judicial Review - General

A petition for judicial review needs to be lodged with the Court of Session within three months of the date of the decision/omission/action which is to be subject of the application to the supervisory jurisdiction of the Court.   This time limit may only be extended where the Court considers that it is equitable

The Rules of the Court of Session make provision for the possibility of a sist for legal aid, but any sist is limited to twenty-eight days.

If you are instructed to raise a petition for judicial review, you should lodge the application for civil legal aid as soon as possible so that we can determine the application before the expiry of the three month time limit.   In that way, the applicant will know whether legal aid has been granted before needing to prepare and lodge a petition.  It will also avoid the possibility that court procedure takes place at a time when no legal aid is in place.
In some situations you it may not be able to lodge the application in a timeframe that lets us determine the application before the end of the three month time limit.   The application should still be lodged as soon as possible as even if special urgency provisions are needed to prepare and lodge a petition to protect the applicant’s position and to have the petition sisted, the limited duration of sist available means it will be better if the application is as well advanced as it can be prior to the sist.  This will give the best prospect of the getting a decision on the application prior to the expiry of the sist.  Although a motion to sist can be renewed, the Court may not be satisfied that it is reasonable to do so where there has been delay on the part of the applicant in lodging an application for legal aid or in dealing with necessary requirements of the application.

Normally it is not reasonable to grant legal aid where no attempts have been made to resolve matters extra-judicially.  We consider it to be premature to lodge an application for legal aid where no attempt to resolve matters by negotiation has been made.   In judicial review cases, however, recognition will be given to the limited time period available.   See Section 1.23 [link to 1.23]

Applying for extension of the three month time period

If the normal three-month time limit has expired an applicant can apply to the court to be allowed to proceed with a petition nonetheless on the basis that it is equitable in all the circumstances.

Depending on the circumstances, you may need to move quickly to make application to the court but as the statutory time limit has passed, any application for special urgency cover needs our prior approval under regulation 18(1)(b).   Please refer to the Special Urgency commentary at paragraph 6.6C

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4.76C Petitions for Judicial Review – Minimum Requirements for Applications

The time restrictions which apply to the lodging of a petition for judicial review means you must provide all relevant and sufficient material with the application.

In terms of regulation 5 of the Civil Legal Aid (Scotland) Regulations 2002 it is a matter for SLAB to specify what is required in any application for civil legal aid. There are minimum requirements to be met before an application for civil legal aid for petitions of judicial review can be registered.  If these requirements are not met the application will be rejected unless we are given good reasons explaining the absence of the necessary information.  For more on the status and effect of rejection see paragraph 1.14.1

Where we reject an application because the minimum requirements have not been met any advice and assistance account subsequently submitted for payment may be abated in respect of charges incurred for abortive work where there was a failure to comply with our minimum requirements.

The minimum requirements will be one of two permutations, depending on whether, at the time the application is made, the petition for judicial review has been lodged in Court.   The permutations are:

(a)    Where the petition has not been lodged when the application is made

This summary of grounds should not normally extend beyond one or two sheets

 (b)    Where the petition has been lodged prior to the application being made

 Applications for judicial review of decisions taken by the First Tier Tribunal and Upper Tribunal

Further requirements for applications for civil legal aid for judicial review of un-appealable decisions of the First Tier Tribunal and Upper Tribunal are detailed at paragraph 4.95

Statutory Statement – Standard format for judicial review petitions

 For an application for civil legal aid in relation to a petition for judicial review you need to use the standard format. 

Judicial Review

  1. The applicant is X
  2. The opponent is Y.
  3. The opponent has responsibility for …..
  4. The applicant seeks legal aid to bring a petition for judicial review in respect of the decision / action / omission of the opponents on [date] to……..
  5. The decision of the opponents is challengeable because…….
  6. The applicant has attempted to resolve this issue with the opponents without litigation by…../The applicant has not attempted to resolve this issue without litigation because……
  7. (As at the date of lodging the application) The applicant has lodged a petition seeking judicial review in respect of the foregoing on [date of lodging] / The applicant has not yet lodged a petition seeking judicial review in respect of the foregoing

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4.76D  Legal aid for judicial review of SLAB decisions - processes

There are broadly two types of situation which can arise with one being more straightforward than the other.

In the more straightforward situation the applicant seeks legal aid to judicially review a decision of SLAB.   The less straightforward situation is where the applicant seeks legal aid to judicially review a decision of SLAB to refuse legal aid for a separate action of judicial review (which will normally be against a decision of another public body, but could conceivably also be against an earlier decision of SLAB).

Both present challenges in terms of the restricted time-table given the specific provisions and arrangements that apply to us where we are both the administrator of legal aid to which an application has been made  and the opponent.   The time-related challenges of the second of the situations described in the previous paragraph are particularly stark.

In such cases it is highly likely that the original action will require to be sisted to await determination of the judicial review of the SLAB decision. Given that a sist for legal aid can only be for a maximum of 28 days, a motion for sist of the original underlying action may require to be renewed, potentially more than once.

Processes – SLAB administration of the legal aid application

Where an applicant seeks judicial review of a decision we have taken, the same or similar considerations apply.  We have had Difficulties and delays have been caused by applicants or their solicitors adopting a different approach where an application for legal aid relates to judicial review of a SLAB decision.  Often we are given minimal or insufficient information about the particular decision which has led to the application and the legal basis on which it is to be challenged.  In some applications the articulation of legal grounds for judicial review against us are inadequate: “The Board decision to refuse is unreasonable” or “The Board has erred in law” are typical examples of grounds which are insufficiently specified.  

You have to satisfy us that there is probable cause to litigate and that it is reasonable to grant legal aid in exactly the same way where we are the decision-making body against whom the complaint is made as it does for any other decision-making public body. The minimum requirements specified above apply equally to applications against us.  

Applications for judicial review against our decisions are considered by senior solicitors within SLAB.    Where the initial decision is to refuse and a review is sought it is considered by SLAB’s Legal Service Cases Committee (“LSCC”) which is a committee comprising Board members, co-opted members who are experienced legal practitioners and senior SLAB officials.   Unless the LSCC is minded to grant the review, the application is referred to the Sheriff of Lothian & Borders at Edinburgh in terms of section 14(4) of the Legal Aid (Scotland) Act 1986.

Referrals to the Sheriff

Where an application is referred to the Sheriff the application papers together with any observations made by us or the applicant are sent to the court.   The sheriff decides the merits of the application.    The sheriff’s decision is final.

Where the sheriff directs that legal aid is to be made available then, subject to the applicant being financially eligible, we will grant the application.

Processes – SLAB as Opponent

All opponents who are notified of a legal aid application are implicitly entitled to consider their position irrespective of whether they go on to make representations to us about the application for legal aid.  An opponent might look again at the decision/act/omission under challenge and the possibility of extra-judicial resolution or review of the decision is both legitimate and encouraged by the intimation process.   In that respect SLAB as an opponent is no different, even if another difference is that we will not (and could not) make representations to ourselves.

We encourage dialogue about any application decision to see if the matter can be resolved.    We recognise that mistakes in decision-making can occur.   We welcome any opportunity to put that right.  Beyond that as with any opponent, it is open to us to review the position in relation to the original decision under challenge once we know it is being challenged.   In turn, the challenge may or may not be seen to have merit.     While we cannot at our own volition reconsider a prior final decision, we may discuss with you whether as a matter of agreement an application can be re-opened for the purpose of a fresh consideration.

Where this is agreed

While you need not agree to this approach a failure to participate in extra-judicial discussions which could or would resolved an issue without the need for court proceedings may have a bearing on the reasonableness of a grant of legal aid.

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4.77 Miscellaneous other cases

4.78 Wider public interest

When considering the reasonableness test, a relevant factor may be that a case demonstrates a wider public interest. A wider interest may be presented in an application for matters such as judicial review, appeals or reparation where several cases arise out of the same incident, or where the outcome of the case may have a direct tangible benefit to the applicant and to others.

It may be unreasonable to make legal aid available to a person to litigate, as a private citizen, at public expense, about something that is obviously not exclusive to him or her. Examples could be fluoridation of public water supplies, noise generated by a large social or cultural event, closure of public leisure facilities. Our Legal Services Cases Committee will consider any applications of this nature.

If we are satisfied the case does demonstrate a wider public interest, we can, in the particular circumstances, treat this as a determining factor, even if the value of the claim is relatively modest. However, we must also consider questions such as prospects of success and cost-benefit.

Evidential requirements

You must give us full and accurate information about the value of the claim and the likely case costs. This will allow us to assess whether there is any prospect of financial benefit to the applicant.

Full information should be provided about the nature of the wider interest in the case. Our criteria for a wider public interest will not be met:

Any application must address the tests in regulation 15 of the civil regulations. That regulation requires us to refuse applications for civil legal aid where the applicant has a joint or the same interest with others if we are satisfied that

If the applicant is part of a group bringing similar claims, or similar claims have already been brought by others, whether legally aided or not

We must refuse the application if the tests in regulation 15 are met. You should include your views on wider public interest and regulation 15 in relation to this case in a separate note, not in the statutory statement or the applicant’s statement.

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4.79 Actions of payment – applications to pursue

In assessing reasonableness, we will consider several factors including

Evidential requirements for actions of payment

(a) The applicant’s statement should specify

(b) Supporting information should be produced, if available, or an explanation given why it is not available.

(c) Copies of all relevant documents should be submitted – for example

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4.80 Actions of payment – applications to defend

A bare denial is not sufficient or satisfactory for a legal aid application. The applicant must produce evidence countering the pursuer's averments, and evidence supporting their defence, if available.

The applicant may also seek legal aid to cover a counterclaim, for which they would be expected to produce the same standard of supporting evidence as for raising an action.

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4.81 Actions for payment by HM Revenue and Customs

We sometimes receive applications to defend actions for payment at the instance of HM Revenue and Customs in a situation where there is no defence,

The Taxes Management Act 1970 relates to the recovery of income tax and national insurance contributions, and contains an appeal mechanism for aggrieved taxpayers.

If a defender chooses not to appeal against any assessments, or exhausts the appeal procedure, they have no defence in an action for payment of the tax assessed and the court has no jurisdiction to interfere with the assessments. The authority for this proposition is contained in the decision of the First Division in The Lord Advocate v McKenna 1989 SLT 460.

Since the introduction of self-assessment from 1996/97, a taxpayer must complete a return form which includes a self-assessment. No appeal can be made against a tax liability which arises from such a return since it is based on the taxpayer’s own figures. If they have made an error in their return, they are entitled to amend it.

In certain circumstances, any issue which cannot be resolved between the Inspector and the taxpayer must be listed for hearing by the General or Special Commissioners under terms of Schedule 1(A) to the Act. Again, any further appeal lies to the Inner House of the Court of Session, and the courts have no jurisdiction to alter the liabilities in an action for payment.

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4.82 Evidential requirements for defence of payment action

(a) The applicant may oppose the action on the grounds either that the pursuer is not due the sum sought, or that the sum sought is excessive. Either line of defence should be adequately made out. A copy of the summons or initial writ should be provided and the applicant's statement should answer the pursuer's averments in detail, particularly if liability is being denied. If quantum is being challenged, the applicant should explain why the full sum sought is not due.

(b) A supporting statement should be produced, if available, or an explanation why not.

(c) Copies of any relevant documents should be submitted, with relevant parts highlighted. Where the parties had a contract for certain works to be carried out, and the applicant is disputing that it was completed or completed satisfactorily, any reports obtained from experts on the standard of work should be provided.

(d) Any statements from witnesses about the quality of work carried out should be submitted.

(e) Where the defence is that the sum sought is excessive and an offer of a reasonable settlement has been made, a copy of the offer and the pursuer's response should be produced. If the defence is that payment has been made, a copy of the appropriate documentary evidence should be produced.

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4.83 Actions of reduction – applications to pursue

Our evidential requirements are:

(a) The applicant's statement should explain in detail

(b) A copy of the deed or court decree or other matter to which objection is taken should be produced, if possible, or an explanation given why not.

(c) Evidence of title to sue should be produced, where possible.

(d) A supporting statement should be produced, if available, or an explanation given why not.

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4.84 Actions of reduction – applications to defend

Our evidential requirements are:

(a) A copy of the summons, a copy of the deed (if possible), and the applicant's statement, which should detail the circumstances in which reduction is opposed and answer the averments in detail.

(b) A supporting statement, if available, or an explanation why not.

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4.85 Bonds of caution

Premiums for bonds of caution may be met from the Legal Aid Fund in guardianship proceedings and certain executry matters.

Paragraph 4.87 gives guidance on adults with incapacity. Part III paragraph 5.5 gives guidance on bonds of caution in executries.

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4.86 Caution for expenses

In actions where the court considers that someone has no basis for their claim and little likelihood of success it may order a party to find caution for expenses as a condition for continuing with their case. These orders may be made against a legally assisted individual or an opponent in an action involving a legally assisted individual. Where the court makes an order it will usually fix an amount for the individual to pay into the court. The purpose of lodging this money, or a guarantee of payment, is to try to ensure that the expenses of an opponent can be met at the conclusion of the case if the individual against whom the order has been made loses and is ordered to pay expenses.

We cannot meet the costs of caution if such an order is made against a legally assisted individual. If such an order is made against either the legally assisted individual or any other party in the action you must tell us in an unprompted report. You must also comment on the appropriateness of legal aid continuing.

Under regulation 30(b) of the Civil Regulations, if there is no longer probable cause or it is unreasonable for legal aid to continue, we may terminate the grant. Where a court has decided that a case made on behalf of a legally assisted individual has so little merit that caution for expenses is necessary, this is a change of circumstances. We need detailed comments on probable cause and reasonableness to consider the possibility of terminating the grant of civil legal aid. Where the court decides that caution for expenses is necessary for a non legally assisted party in an action this is also a change of circumstances where detailed comments on the reasonableness of legal aid continuing are needed to allow us to consider whether the grant of civil legal aid should be terminated.

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4.87 Bonds of caution – adults with incapacity

Where someone is seeking either an appointment as a guardian to an adult with an incapacity or an intervention order in relation to the adult, they must obtain a bond of caution. An insurance company will provide this bond subject to payment of a premium. The cost of this is usually chargeable against the estate of the adult with incapacity. The purpose of the bond of caution is to indemnify that adult against any error or maladministration on the part of the guardian or the person who obtains the intervention order. Guardians may be appointed either to administer the estate of an incapable adult generally or, more specifically, to represent an adult with an incapacity involved in any litigation.

At the time an individual is appointed as a guardian to the incapable adult there may be no fund or estate to meet the costs of this premium. In such situations, it may be appropriate for us to meet the costs of the premium for the bond of caution.

If you want cover for the costs of the premium, you should ask for sanction to cover this. Before we can consider the request, we need:

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4.88 Safeguarders – Adults with Incapacity (Scotland) Act 2000

In an action where the sheriff appoints a safeguarder, responsibility for the safeguarder’s fees and outlays does not automatically fall to any specific party. The Board is not a party to the proceedings, and since it can not be held to be dominus litis, the Board can not be found liable to meet the costs of a safeguarder. For the cost to be met from the Fund an interlocutor ordering that the assisted person meets such costs is needed.

Following any initial enquiries, including reporting to the court orally or otherwise, if the safeguarder considers that they should enter the process and seek to raise issues about the case, an application for civil legal aid on behalf of the safeguarder must be made. Fees incurred by a party to the proceedings can not be deemed to be an outlay on the account of an assisted person. Funding may be available under advice and assistance to cover the costs of preparing and submitting an application for civil legal aid.

In these cases, we consider that probable cause can generally be established if the applicant shows that they are entitled to enter the proceedings.

To show reasonableness, the applicant should focus on the need for this separate representation in the proceedings. An application for legal aid should detail why the existing parties in the action cannot adequately deal with any issues that might arise; or the enquiries made by the safeguarder and reported to the court are insufficient to properly represent the adult’s interests and direct involvement in the case, including examination and cross examination of witnesses is needed.

It is not enough to submit in support of an application for legal aid only a statement from the safeguarder indicating that they have been appointed and so need legal aid. Irrespective of the terms of appointment, the statutory tests of probable cause and reasonableness must be addressed and met before a grant can be made.

Our evidential requirements are:

To address financial eligibility, regard should be had to the provisions of Regulation 14(1) of the Civil Legal Aid (Scotland) Regulations. Under this regulation when a person is acting in an official capacity, such as a court appointed safeguarder, the financial resources of that person are disregarded. Information must be provided to the Board detailing the value of any property or the amount of any fund out of which that official is entitled to be indemnified, as well as the disposable income and disposable capital of any persons who might benefit from the outcome of the proceedings.

When making an application, the applicant should be designated as the person whose interests the safeguarder has been appointed to protect, with the safeguarder’s information provided in representative details section of the application

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4.89 Fatal Accident Inquiries

The Act of Sederunt (Fatal Accident Inquiry Rules) 2017 set out the Inquiry Principles which include that an inquiry is to be progressed expeditiously and efficiently, with as few delays as possible. During the development of the court rules, we committed to prioritising civil legal aid applications for Fatal Accident Inquiries and to assist solicitors and applicants with the application requirements to ensure the efficient progress of the inquiry. To achieve this, we also need your assistance and that of the applicant.

With the Inquiry Principles in mind, as soon as your client instructs you regarding an incident which may proceed to a Fatal Accident Inquiry or contacts you after receiving First Notice of the inquiry, you should consider the steps that will need to be taken to send us a civil legal aid application as soon as the need arises. These steps may include advising your client about the availability of civil legal aid and, if appropriate, the information they will need to provide for us to assess their financial eligibility. We understand you will do this as a matter of course, but we would ask that you consider doing this as soon as possible so that the civil legal aid application is ready to be submitted after the First Notice is received.

At the preliminary hearing, the sheriff will expect to hear from you about the progress that has been made with regard to applying for civil legal aid and may on occasion ask us to provide information about progress.

If you are unsure about anything contained in this guidance or if the inquiry is likely to be unusual or large, take the opportunity to contact us and discuss it with us so that we can assist you with the information we will need to know.

You should lodge any application for legal aid as soon as possible providing the information set out in this guidance.  This will help us to assess your application with the minimum of delay.  Please remind your clients of the need to provide all necessary financial information as promptly as possible so that the financial eligibility assessment can also be completed with the minimum of delay.

Depending on the stage the case has reached when you make the application, we will want to see information which shows that you have taken steps to agree information, as required by the Rules and to focus the issues to be considered by the Inquiry.

Multiple family members

If more than one member of a family is applying for legal aid you need to explain why this is needed, having regard to the best use of public funds.  This may mean you need to liaise with solicitors for other family members before applying for legal aid.  You should tell us why more than one family member needs to be represented at the inquiry, irrespective of the background to the inquiry (including deaths in custody), where it is known that requests for such representation will be made.

Deaths in prison or police custody

Statutory test: probable cause

When we assess any application, probable cause is established if the applicant falls within the category of persons entitled to be represented at the Fatal Accident Inquiry as a relative of the deceased or as a potential defender.

Statutory test: reasonableness

Where the application is made by the relative of a person who died in prison or police custody we will look favourably on the application subject to there not being more than one request from a family member for representation.  Given that someone has died in custody it is appropriate for relatives to have their own independent representation at the inquiry to determine the facts and as such the test of reasonableness will be met.

All other Fatal Accident Inquiries

Statutory test: probable cause

We consider that probable cause can be established if the applicant falls within the category of persons entitled to be notified of a Fatal Accident Inquiry under section 11 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

Statutory test: reasonableness

To allow us to assess whether the test of reasonableness is met you should tell us about:

•    why you think the applicant needs separate legal representation at the inquiry, in addition to the role of the Crown
•    any potential areas of dispute with the Crown in relation to the approach taken to the inquiry or the evidence to be led
•    any areas of concern in relation to any other party involved in the inquiry that might result in the need for representation
•    any areas of inquiry the applicant wants to pursue which will not be addressed by the Crown or should be pursued in a different way
•    why you consider these different areas of inquiry are appropriate and reasonable to be taken forward at the inquiry, having regard to the purpose of an inquiry
•    any other factors that you consider should be taken into account in assessing the need for representation.

In some cases, we may need to see copies of the correspondence you have had with the Crown or, through you, request that specific points are clarified by them.

In accordance with the purpose of an inquiry, we will not consider the test of reasonableness to be met where an applicant’s purpose in seeking representation at the inquiry is to identify and ingather information that might support a reparation claim.

Where an applicant is a potential defender in any subsequent reparation proceedings or may face criminal proceedings connected to the death, you should provide information focussed on issues such as whether the applicant requires representation to protect their legal position against self-incrimination or avoiding any further proceedings.

Expert Witnesses

The court rules allow for the appointment of single expert witnesses and that, unless the sheriff orders otherwise, the cost of instructing the single expert witness is to be shared equally between the parties. You should apply for sanction for your client’s share of the costs in the usual way.

Payment of fees to solicitors

For Fatal Accident Inquiry proceedings, solicitors are paid detailed fees under Schedule 5 of the Civil Fees (as amended) Regulations 1989. The Schedule 5 fee table covers all the work required under the court rules.

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4.90 Applications for legal aid for appellate proceedings

4.91 Appellate proceedings in general

In general, appellate proceedings are distinct from proceedings in the court below and need a fresh application for legal aid.  However, if the subject matter of the appeal is an interim matter only, the existing legal aid may be extended to cover the appeal.  You should submit and amend application with appropriate documentation so that we can consider extending the legal aid to cover an appeal against an interim order.

If the applicant holds a decree in the court below, we will be satisfied that they have probable cause to oppose the appeal by the other side, but must still be satisfied that it is reasonable to grant legal aid.  You should show that the decree confers a benefit on the applicant that it would be reasonable for public funds to support.

Where the applicant wishes to initiate the appeal either on an interim order or against final judgement, we need at least:


See also 3.29

NOTE
Amended March 2009

4.91A     Judicial Review – Appeal against the refusal/restriction of permission

Appeals against refusal of permission or against a restriction of permission to proceed with judicial review, in terms of Section 27 D of the Court of Session Act 1988 are not treated as separate proceedings which need a fresh application for legal aid.   Where a grant of legal aid has been made, you should submit an AMEND application together with the documentation detailed in paragraph 4.91.   Legal aid will only be available for the appellate proceedings where we are satisfied that there is probable cause to appeal and that it is reasonable for legal aid to be made available.

You also need to submit an AMEND application where you have previously submitted an application for civil legal aid for the proceedings for judicial review, but we have not taken a decision on it at the time the need to appeal the decision arises.

Where there is no grant of legal aid or where there is a grant which has not been  extended to cover the contemplated appeal, special urgency cover is available under regulation 18(1)(a) and 18(2)(i) for initiating the appeal within the seven day period permitted by Section 27D(2).   Any further work to be done under the special urgency provisions needs our prior approval under regulation 18(1)(b).   We need to be satisfied that there is special urgency.   We may not be so satisfied where the whole circumstances of the case are such that an application for legal aid could have been lodged and determined earlier but for fault or delay on the part of the applicant or solicitor.

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4.92 Appeals to the Supreme Court of the United Kingdom

We have special arrangements to expedite processing applications for appeals to the Supreme Court. These applications were previously considered by our Legal Services Cases Committee, but in order to provide more efficient processing of applications following the changes brought in by the Courts Reform (Scotland) Act 2014 most applications will now be determined without the need for the case to be referred to the Committee, unless the application concerns issues of wider importance which merit this. As a result we require to revise the application process.

An applicant applying for leave to appeal from the Inner House of the Court of Session to the UK Supreme Court will now either need leave to appeal from the Inner House, or permission from the UK Supreme Court itself.

If an applicant has a grant of legal aid for an appeal to the Inner House of the Court of Session, then the application which requires to be made to the Inner House, for leave to appeal to the UK Supreme Court, is covered under the existing grant of legal aid, without the need for the grant to be amended/extended for this purpose.

If leave is refused, and you require to apply to the UK Supreme Court for permission to appeal, then you should apply for special urgency cover under regulation 18(1)(b) for this purpose. A further application for special urgency cover is needed if an oral hearing is fixed on the application for permission to appeal.  Your application for special urgency cover should be accompanied by a note from senior counsel on the prospects of appeal (if the applicant has legal aid for proceedings in the Inner House we will cover the cost of the opinion under that legal aid). Whilst the outcome of the application for permission is awaited, you should submit your application for civil legal aid which we will hold pending the outcome of the permission hearing.

Your application for civil legal aid should include the following:

• the interlocutor appealed against
• the reclaiming print
• such parts of the appendix as may be appropriate
• the opinions of the judges of the Inner House
. details of the outcome of the perm
ission hearing
• any other relevant papers.

Each distinct document submitted in support of an application should be scanned in as a separate item and not submitted as part of one all encompassing document.

You should include in the application information showing the benefit of the case to the applicant, and a cost-benefit analysis if appropriate.
In any application for proceedings before the Supreme Court, we should be satisfied there are not only significant prospects of success, but also significant points of law to be argued.

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4.93 Applications for legal aid for licensing appeals under the Civic Government (Scotland) Act 1982

The applicant should produce a statement giving as much background information as possible and explaining how they are or will be affected by the decision in question. If they were represented by a solicitor at any hearing, a statement by that solicitor giving an account of the proceedings and explaining the grounds of appeal should be submitted in support of the application.

A copy of any written reasons for the authority's decision should be produced, and any other relevant documents.

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4.94 Applications for legal aid for appeals to the Court of Session from the First Tier and Upper Tribunal.

An appeal from the Upper Tribunal is heard by the Inner House.  You can apply for civil legal aid for both this and an appeal to the Court of Session against a refusal by the Upper Tribunal to grant leave to appeal a decision taken by the First Tier Tribunal.
The application should provide:

(a)    a copy of the judgement to be appealed;
(b)    where the appeal is against the refusal of leave to appeal a copy of the original decision to be appealed;
(c)    the grounds of appeal;
(d)    an applicant’s statement;
(e)    detailed comments on the prospects of success including comments from counsel where they have previously been instructed.

Appeals to the Inner House may raise issues of wider public interest or involve high costs.  Where this applies you must address the issues with reference to the guidance at Part IV Chapter 3 (Reasonableness) and Part IV, Chapter 9 (High Cost and Complex Cases).

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4.95 Applications for judicial review of decisions taken by the First Tier Tribunal and Upper Tribunal

Judicial review of otherwise un-appealable  decisions taken by either Tribunal are competent, if the criteria specified in the case of Eba v The Advocate General for Scotland [2011] UKSC 29 and now incorporated in section 27B of the Court of Session Act 1988 are met. 

An application for civil legal aid in relation to such a judicial review should include, in addition to, or as part of, the minimum requirements specified at 4.76C :

Section 20 of the Tribunals, Courts and Enforcement Act 2007 provides that the Court of Session must, in certain circumstances and may in others, remit the judicial review to the Upper Tribunal.  Where this happens the grant of civil legal aid for the judicial review continues to cover the referral to the Tribunal.  No amendment to the grant of legal aid is necessary but you should notify us of this development using the stage reporting procedures detailed at Part IV, Chapter 8, paragraph 8.1 of the Handbook.  (Duty to report change of circumstances.)

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4.96 Applications for appeal proceedings before the Social Security Commissioners

Notwithstanding the general abolition of appeals to the Child Support Commissioners and Social Security Commissioners, a reference remains in the Legal Aid (Scotland) Act 1986 to the Social Security Commissioners which reflects the Commissioner’s continuing powers in a very limited category of proceedings. Legal aid is available only for a determination by a Social Security Commissioner in an appeal made under section 159 (appeal to Social Security Commissioner) of the Health and Social Care (Community Health and Standards) Act 2003. This is an appeal against a decision of an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998 in an appeal referred to such a tribunal by the Scottish Ministers, or the Secretary of State, in terms of section 158 of the said 2003 Act.
Any application for legal aid for such an appeal should provide:

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4.97 Applications for legal aid for actions of lawburrows

Where an application is for an action of lawburrows, we need

although corroboration may not be needed for the action itself, any supporting evidence that is available about the circumstances of the applicant's complaint.

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4.98 Hague convention on international child abduction

Modified procedures apply to these applications – see Part IV paragraph 5.1.

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4.99 European convention on the custody of children

Modified procedures apply to these applications – see Part IV paragraph 5.1.

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4.100 European judgements convention

Modified procedures apply to these applications – see Part IV paragraph 5.2.

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4.101 Maintenance Orders (Reciprocal Enforcement) Act 1972

Modified procedures apply to these applications – see Part IV paragraph 5.3.

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4.102 Cross-border disputes within the European Union

Modified procedures apply to these applications – see Part IV paragraph 5.7.

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4.103 Council Regulation(EC) No 4/2009 relating to maintenance obligations

Modified procedures apply to these applications – see Part IV paragraph 5.8.

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4.104 Applications by children

NOTE
Section added April 2007

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4.105 All applications

In considering applications by children, we will apply the usual tests of probable cause and reasonableness. We will also expect you to give us any information relevant to the particular type of case, as described in the rest of this chapter.

However, we will also examine the application to decide whether it is reasonable to grant legal aid to a child considering

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4.106 What we will consider in deciding if someone should apply on a child’s behalf

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4.107 Proceedings concerning a child’s welfare

Children may wish to become involved in proceedings about their welfare such as residence and contact, or divorce. In such cases, we will consider carefully whether the child’s views could be adequately covered by

If we are satisfied that the child’s views can be put forward without separate representation, we may decide it is unreasonable to grant civil legal aid to allow them to enter the proceedings.

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4.108 Cases where there might be no added welfare benefit to the child in being represented separately from a parent or guardian

We may not consider that the child’s involvement in proceedings in their own right gives them any immediately obvious welfare benefit beyond what they would have if their parent or guardian acted on the child’s behalf. If so, we may consider it more appropriate for the application to be in the name of that parent or guardian. Examples of this are:

These examples are illustrative only and there are other situations where we may consider it is more appropriate for an application to be in the name of a parent or guardian.

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4.109 The child’s age

We will consider a child’s age very carefully to decide whether they are:

We will consider it reasonable to grant legal aid only where we are satisfied that

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4.110 Defamation

NOTE
Amended October 2012

The Legal Profession and Legal Aid (Scotland) Act 2007 extended civil legal aid to cover a wider range of defamation cases than previously, with effect from 17 August 2007. Before then, civil legal aid was only available to defend a counterclaim for defamation made in other proceedings. The general exclusion on the availability of civil legal aid in paragraph 1 of Part II of Schedule 2 to the Act has been varied to the extent described below.

Paragraph 1 retains a presumption that most defamation cases will remain outwith the scope of civil legal aid, unless they comply with section 14(1C) of the Act, or the case is to defend a counterclaim. During the passage of the Legal Profession and Legal Aid (Scotland) Bill, the then Deputy Justice Minister stated that “legal aid will not as a matter of course be made available in defamation proceedings…As the general exclusion of defamation from the scheme will remain in place, legal aid will be approved in only the most exceptional cases.”.

Section 14(1C) provides that civil legal aid is only available where an applicant satisfies the means and merits tests in sections 14(1) and 15 and additional criteria set out in Directions by the Scottish Ministers. The current c criteria are contained in the Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2010, which replaced the earlier versions of the Directions in 2007 and 2008 respectively. In the 2010 Direction, the approach moved on from the stricter approach taken initially in 2007.

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4.111 Criteria to be met

The full criteria an applicant must meet are:

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4.112 Probable cause

An applicant must demonstrate a plausible basis for bringing or defending proceedings. Among other things, issues such as jurisdiction must be fully addressed.

And

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4.113 Reasonableness

The factors on reasonableness described in paragraphs 3.3 to 3.31 must be properly addressed.

And

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4.114 Financial eligibility

The usual financial eligibility criteria apply.

And

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4.115 Direction criteria

(a) The Board is satisfied that there is a wider public interest, as defined in paragraph 4 of the Direction – that is, the proceedings have the potential to produce real benefits for other individuals.

or

(b) The Board is satisfied that effective representation is not possible without public funding.

or

(c) the proceedings concern a cross border dispute and Article 3(3) or 6(3) of Council Directive 2003/8/EC requires that legal aid be made available.

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4.116 Assessing the question of effective representation

In determining whether we are satisfied that, without public funding an applicant would be unable to bring or defend proceedings effectively, we have to take into account the applicant’s ability (with the assistance of any accompanying person) –

Where material to support any such argument is produced, we may be satisfied.

Separately we will be satisfied that an applicant would be unable to bring or defend the proceedings effectively without public funding for representation if we consider the case to be exceptional.

A case may be viewed as exceptional if the degree of exceptionality is the same, or approximately the same, as in the facts found in cases where the Court of Session, the Supreme Court or the European Court of Human Rights has given an indication that the absence of public funding for representation violates one or more of the Convention rights as defined in the Human Rights Act 1998.

The application for legal aid should address in detail which of the paragraphs of the 2010 Direction you consider applies to the applicant’s particular circumstances. Where you consider there is a wider public interest involved you should set out what the interest is and the benefits to the wider community. Paragraph 4.78 provides detailed guidance on the question of wider public interest and the issues that need to be addressed in any application for civil legal aid.

Where you consider that the effective participation test applies you should explain why the applicant could not proceed without public funding and provide any relevant supporting information including, where applicable, medical reports.

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4.117 Is any publicly funded help available if civil legal aid isn’t available?

Financially eligible clients can continue to receive advice and assistance, although this will not cover representation. However, a few cases may meet the criteria for ABWOR under regulation 3(j)(ii) of the Advice and Assistance (Assistance by Way of Representation)(Scotland) Regulations 2003, in respect of civil proceedings arising from failure to obey an order of court. Before providing ABWOR, you must satisfy yourself that it is reasonable in the particular circumstances of the case to make ABWOR available, and it is likely that the court will deprive the applicant of their liberty. This would allow for representation of a defender in breach of interdict proceedings relating to defamation or verbal injury, where the breach is serious enough to suggest a genuine, not hypothetical, risk of imprisonment. It would be particularly well suited to a case where the applicant admits the breach, and seeks early disposal.

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4.118 Mortgage rights proceedings – Home Owner and Debtor Protection (Scotland) Act 2010 – applications to defend proceedings

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4.119 Background

An applicant may oppose an action to repossess property on the grounds that:

The Home Owner and Debtor Protection (Scotland) Act 2010 introduced steps a lender must take before starting any court action. If the lender does not take these steps the application for repossession will not be valid.

The pre-action requirements are that the lender must:

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4.120 Evidential requirements

In support of any application, you must send us:

a) a statement from the applicant which should explain in detail:

b) a copy of the application to the court or, if this is not possible an explanation as to why not

c) a supporting statement or supporting documentation or, if this is not available, an explanation as to why not.

NOTE
Added September 2010

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4.121 Proceeds of Crime

Work undertaken in relation to Proceeds of Crime may involve either criminal or civil legal assistance.

Proceedings brought against an individual are civil in nature where they concern:-

These proceedings take place in either the Court of Session or the Sheriff Court. You can grant civil advice and assistance for initial advice and you may submit an application for civil legal aid where representation in any court proceedings is necessary.

Where criminal proceedings have taken place in either the High Court or the Sheriff Court and the trial has concluded, if confiscation proceedings are being brought against the applicant and he is a convicted accused further work in relation to the confiscation proceedings can be done under any existing grant of criminal legal aid. The confiscation is treated as part of the sentencing process.

Where solemn and summary criminal legal aid was in place for the trial, the same grant of legal aid remains in force. In summary cases, where the grant of legal aid is subject to fixed fees, an application for exceptional status can be submitted to allow the payment regime to change to time and line to help cover the additional work required for the proceeds of crime proceedings. If criminal ABWOR had been made available at first instance, an increase in authorised expenditure can be submitted, but this can only cover any outlays required for these confiscation proceedings, as there is no facility in ABWOR cases for solicitors to be paid more than the disposal fee.

If no summary or solemn criminal legal aid was in place for the trial, then a new application can be submitted for the confiscation proceedings, where the Board will apply the undue hardship and interests of justice tests in solemn criminal legal aid, and the undue hardship teat in solemn criminal legal aid.

If the Board had granted sanction to employ counsel at the original trial, this will not automatically carry over to the confiscation proceedings. If counsel is required, then a new application needs to be made for this.

Where the applicant was either not convicted or was never an accused person, advice and assistance may be available to help with the proceedings. If an applicant is not financially eligible for advice and assistance they will need to pay privately in respect of the confiscation proceedings.

If they qualify for advice and assistance then regulation 5 of the Advice and Assistance (ABWOR) (Scotland) Regulations 2003 may cover representation. If one of the grounds in regulation 5 applies you can make a request for our approval to provide ABWOR. Where this is granted you can represent the applicant in any proceedings.

Solicitors must obtain the Board’s prior approval in connection with applications under the provisions of the Proceeds of Crime (Scotland) Act 1995 and the Proceeds of Crime Act 2002. Regulation 5(2)(i) provides for ABWOR in relation to “representations made to the court under section 92 of the Proceeds of Crime Act 2002 by any person, other than the accused, whom the court thinks is likely to be affected by a confiscation order”.

If none of the grounds specified in regulation 5 applies then you can only provide advice and assistance. No cover for representation can be given. In addition, if you make a request for our authority to provide ABWOR and we refuse this only advice and assistance can be made available.

Where any proceedings are brought against an applicant by the Civil Recovery Unit these are civil proceedings and an application for civil legal aid will need to be made. The statutory tests of financial eligibility, probable cause and reasonableness will be applied to any application. The application should set out the reasons why you consider there is a defence to the action and it should also give sufficient information to show that it would be reasonable to make legal aid available. You should consider our guidance on the approach we take to assessing reasonableness set out in Chapter 3 Part IV of the Handbook.

The usual financial tests apply to these cases as any other cases but any funds released by the Crown in civil recovery proceedings are disregarded by us in carrying out the financial assessment.

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4.122  Private sector tenancies – including eviction proceedings in the First-tier Tribunal for Scotland (Housing and Property Chamber)

Proceedings relating to private tenancies will be heard in the First-tier Tribunal for Scotland (Housing and Property Chamber) from Friday 1 December 2017.

This encompasses actions in relation to the Rent (Scotland) Act 1984, the Housing (Scotland) Act 1988 and the Private Housing (Tenancies) (Scotland) Act 2016.

Importantly this affects proceedings for eviction in relation to most private sector tenancies in Scotland, which were formerly within the jurisdiction of the sheriff court.

Civil legal aid is potentially available for these proceedings, with full details on all applicable actions listed below. Links to the applicable fee legislation are also available below

Legal aid may be available to both landlords and tenants subject to eligibility tests. As well as financial eligibility, an applicant must satisfy the statutory tests of there being probable cause and that it is reasonable in all the circumstances that legal aid is granted.

Information on financial eligibility for applicants can be found here.

Application Requirements

We have set out our application requirements below giving details of the documentation we need to allow us to assess whether the tests of probable cause and reasonableness are satisfied. We may need to ask you for more information once we have looked at your application. You can use our internal Operation Guidance (in the blue accordion section below) to find details of the criteria we use when making a decision on an application.

*Please note that a system change is pending on Legal Aid Online to include the First-tier Tribunal for Scotland.  The change will not be in place until next year, so you should continue to select the “Sheriff Court” court type, and we will amend the details manually on any legal aid certificate.

List of matters for which legal aid is potentially available:

1. Actions for recovery of possession of heritable property arising from the following tenancies and occupancy agreements:

2. Any actions arising from the Rent (Scotland) Act 1984 including:

3. Any actions arising from the Housing (Scotland) Act 1988 including:

4. Housing (Scotland) Act 2006


5. Any actions arising from the Private Housing (Tenancies)(Scotland) Act 2016 including:

Fees in relation to the First-tier Tribunal for Scotland (Housing and Property Chamber)

Fees are chargeable as per Schedule 2A Fees Allowable to Solicitors for Simple Procedure Cases and First-Tier Tribunal for Scotland Cases which can be found here.

Counsel’s fees are chargeable under Schedule 4, Table of Fees B Fees of Counsel for Proceedings in the Sheriff Court, First-Tier Tribunal for Scotland, Sheriff Appeal Court and Upper Tribunal for Scotland which can be found
here.


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