Handbooks Index

 

Part 4: Civil legal aid


Chapter 6

Special urgency

 

6.1 Cover for work done before a decision on the legal aid application

6.1A Information a solicitor should request and documentation a solicitor should see in order to inform their view that their client was financially eligible for Regulation 18 work
6.2 Circumstances in which you may undertake urgent work
6.3 The online declaration
6.4 Payment of contributions
6.5 Collection of contributions
6.6 Guidance on special urgency applications - general

6.6A Guidance on special urgency applications - particular situations

6.6B Family Actions

6.6C Petitions for Judicial Review
6.7 Expenses and property recovered or preserved
6.8 Status of applicant
6.9 Extension and amendment applications
6.10 Sanction applications
6.11 Urgent work including collateral matters
6.12 Regulation 18 is not a grant of legal aid
6.13 If the client does not comply with the Board’s requests for information
6.14 Exemption of court fees

 

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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.

6.1 Cover for work done before a decision on the legal aid application

The general rule is that legal aid is only effective from the point when we are satisfied on the statutory tests of probable cause, reasonableness and financial eligibility (the "effective date").  Because of this, provision is made in the regulations for work that has to be done as a matter of special urgency before a decision has been reached on an application. 

In some special situations, if you have to do work as a matter of special urgency to protect the client's position, any legal aid that we subsequently grant will be retrospective to cover that work.  Outwith these specific situations, a subsequent grant of legal aid may cover the work if you get our prior approval to take other steps as a matter of special urgency to protect the applicant's position. 

Regulation 18(2) gives the full list of circumstances in which you may undertake urgent work, and these are reproduced in paragraph 6.2.  Where the special urgency provisions in terms of regulation 18(1)(a) and (2) of the Civil Legal Aid (Scotland) Regulations 2002 are being used you must, in terms of regulation 18(3), both tell us and (if you have not already done so) submit an application for legal aid within 28 days of starting the work.  You must tell us that you have done the work under regulation 18(1)(a) at the same time as you apply for civil legal aid or, if you have already submitted an application, using a special urgency notification.  If you do not, the work will be excluded from any legal aid that may be made available.

If you are applying for certification under regulation 18(1)(b), you can should submit a special urgency application.  If we grant certification, we may limit the steps to be taken to such work, or such purposes, or such period, or to be subject to such conditions, as we consider appropriate.  While you do not need to notify us that work has actually been done following certification, it is important that, if you have not already submitted an application for legal aid , you do so within 28 days of beginning the urgent work.  If you do not, the work will be excluded from any legal aid that may be made available.
Where work has been done in accordance with regulation 18, that work is covered under the legal aid subsequently granted.  This does not mean the effective date on the certificate must be put back to the date the urgent work began.  Your entitlement to payment depends on compliance with the terms of regulation 18 and not on any effective date stated on the certificate.

We recommend that you also refer to the Court of Session practice note on Causes in the Inner House.

NOTE
References to forms amended March 2009. Further amended November 2010.

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6.1A Information a solicitor should request and documentation a solicitor should see in order to inform their view that their client was financially eligible for Regulation 18 work

The following notes are for general guidance only. Each case has to be considered on its own circumstances, such as the timescales/degree of urgency within which the solicitor has to operate in the particular case. If a solicitor does not obtain the information suggested below he/she should be prepared to explain on what basis they were satisfied, on the information available at the time the work was done, that the applicant would be financially eligible. SLAB’s view is that a solicitor will usually only be able to be satisfied as to financial eligibility when they have seen documentary evidence of eligibility. However, SLAB accepts that in some cases, for example where the applicant has had to flee the family home due to fear of harm, it may not be possible for the applicant to immediately produce documentary evidence of financial eligibility. In such circumstances the solicitor should gather and record as much information as possible and retain any documentation that may be available, in order that they can demonstrate how they were satisfied as to the applicant’s financial eligibility.

“Information available at the time the work was done” should be read broadly to incorporate information the applicant could make available to the solicitor, even if the applicant does not bring that information to the first meeting with the solicitor.

Most civil clients, even for cases involving special urgency,  are seen by appointment and best practice is to tell the client at the time when the appointment is made what documentation they should bring to evidence their financial eligibility.

Income - The solicitor should request that their client, and their partner if appropriate, provide up to date evidence of their income. For example copy of their latest payslip/s, most recent benefit award letter or up to date bank statement/s.  The solicitor should also ask the applicant and their partner if they have any other income they are not able to verify i.e maintenance payments received in cash

Capital – The solicitor should request that their client, and their partner if appropriate, provide an up to date statement for all accounts and investments held solely and jointly in their names.  When considering such statements, it is important that the solicitor checks not only the balance on the account but also transactions, such as transfers from or to other accounts, which may be indicative of additional income and/or capital. The solicitor should also ask the applicant and their partner if they have an interest in or due to receive any other capital they have been unable to verify for example property, policies, inheritance etc.

Passporting benefits – The passporting benefits are Income based Jobseekers Allowance, Income support, Income based Employment and Support Allowance and Universal Credit. Contribution-based Jobseekers Allowance and Contribution-based ESA are not passporting benefits and so account has to be taken of these benefits and any other income.

If the applicant is receiving or included in their partner’s claim for one of the above passporting benefits the solicitor should ask to see an up to date award letter.  If after reading the award letter the solicitor is in doubt about whether the benefit is Income based we would suggest they ask their client to telephone their local Benefits Agency to clarify.  It is often the case that the award letter can make reference to the award being assessed on both a customer’s income and national insurance records. However, this does not mean the benefit being paid is Income-based.  It is important at the outset to verify the correct benefit to ensure clients are not advised that they will be entitled to receive contribution-free legal aid in error and then they are later assessed to pay a contribution by SLAB.

If a Form 1 is submitted with a civil application and your client is not in receipt of a passporting benefit we will reject the application for a Financial form 2 which will delay matters for both you and your client.    

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6.2 Circumstances in which you may undertake urgent work

Regulation 18 gives the full list of circumstances in which you may undertake specially urgent work:

(a)    such steps as may be appropriate to intimate an intention to oppose proceedings;
(b)    such steps as may be appropriate to state the basis upon which proceedings are opposed;
(c)    such steps as may be appropriate to repone or otherwise recall a decree in absence;
(d)    moving to sist further procedure or opposing the recall of a sist;
(e)    moving to prorogate the time for compliance with any order or rule;
(f)    moving or opposing a motion for discharge of any diet;
(g)    moving for or opposing decree by default;
(h)    moving for or opposing a motion for summary decree;
(i)    initiating proceedings to avoid time-bar;
(j)     
(k)    opposing interim orders of any kind;
(l)    moving for or opposing an exclusion order;
(m)    moving for or opposing an order for a power of arrest;
(n)   
(o)    opposing a freeing order for adoption or an application by a local authority for a parental responsibilities order under section 86 of the 1995 Act.
(p)   

(q)appearing at a Child Welfare Hearing which has been fixed under rule 33.22A of the Ordinary Cause Rules 1993;
(r)    obtaining warrant for inhibition on the dependence or arrestment on the dependence, including (where not already done) initiating proceedings containing an application for such warrant, and taking steps to have the warrant executed;
(s)    initiating proceedings for suspension or suspension and interdict;
(y)    initiating or opposing appellate proceedings other than such proceedings in the Supreme Court;
(u)    initiating such proceedings as are necessary to enable an application to be made for interim liberation in an immigration matter; and
(v)  

(w)initiating an application to the Court of Session which is certified by the Scottish Ministers to be a Convention application as defined in regulation 45

NOTE
Amended September 2009 to replace references to the Judicial Committee of the Privy Council and the House of Lords with a reference to the Supreme Court.

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6.3 The online declaration

We assess and collect any contribution due by your client if you are working under special urgency cover.  To enable us to do this, you must be satisfied that the applicant is likely to qualify financially for civil legal aid and that the online declaration is completed and signed.  It does not need to be submitted to us but you must keep a copy in case we need it at any point.  In the declaration the applicant agrees to pay us, if we do not subsequently grant legal aid, any contribution we assess they can pay towards part or all the cost of that work. 

The signed online declaration form is your route to payment.  You carry out all work at your own risk until you have an online declaration.  Completing the declaration creates the client’s undertaking to pay the contribution and enables us to assume responsibility for assessing and collecting any contribution.

Clients receiving income support, an income-related employment and support allowance,  income-based jobseeker’s allowance or Universal Credit  must still complete the online declaration.  Their circumstances might change during the course of the specially urgent work.  The signed form also serves as a declaration, and if it is a false declaration, it is the authority for us to recover any sums paid from the Fund.

Before we can accept a claim for payment under regulation 18, we must be satisfied that you had reasonable grounds for believing, on the information available when the urgent work was done, the applicant would be financially eligible for legal aid.  You should either be satisfied that your client is directly or indirectly receiving income support or income-based job-seeker’s allowance, or reasonably satisfied that they are otherwise financially eligible.

You cannot be expected to carry out the same full and detailed assessment of financial eligibility that we carry out.  It will be sufficient to show that the online declaration has been properly completed.  We emphasise that this is only adequate for giving you reasonable grounds for believing your client is eligible and giving the client an indication of the likely level of any assessed contribution.  It should not be treated as a substitute for the full and detailed assessment that our financial assessment staff will carry out.  You are not expected, in the context of a matter of special urgency, to see any vouching of income or capital from the client.

NOTE
Reference to income-related employment and support allowance in fourth paragraph added October 2008.  References to forms amended March 2009.

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6.4 Payment of contributions

The client should know that they can pay any contribution we assess by up to 48 monthly instalments (whether civil legal aid is granted or not) and will only be liable for the contribution or the actual cost of the work done, whichever is the lower.  You may be in a position to give the applicant a clear indication of the likely cost of that work.

The client must sign the online declaration before we can assume responsibility for assessing and collecting any contribution the applicant has to pay towards the cost of the specially urgent work. 

NOTE
References to forms amended March 2009

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6.5 Collection of contributions

This relieves you, if you comply with the terms of regulation 18, of the need to recover any contribution payable and of any need to ask for a payment to account towards your fees and outlays.  If we refuse civil legal aid, we will, therefore, pay you the lodged account in full (subject, of course, to any adjustments) rather than paying you net of any contribution.

In general, we will assess contributions when we receive the application for legal aid and you should not delay carrying out urgent work under the regulation while we carry out this assessment.  It will primarily rely on the financial information provided in the application.

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6.6 Guidance on special urgency applications - general

In assessing any application submitted for cover in terms of regulation 18(1)(b) of the 2002 regulations we have to consider whether the steps require to be taken as a matter of special urgency to protect the position of the applicant. 

We can refuse certification under paragraph 1(b) where an application for civil legal aid by the applicant in relation to the same proceedings has been refused, treated as abandoned or terminated and the applicant has not satisfied the Board that there is a realistic prospect that legal aid will be granted following an application for review or a further application.  We are not obliged to grant certification under paragraph 1(b) where, on receipt of a special urgency application, we have called on the applicant to provide us with sufficient information to enable us to determine whether prima facie the test in section 14(1) of the Act is met.  On seeking further information, if we are satisfied that either the applicant has had sufficient opportunity to provide this information, or would have but for undue delay on the part of the solicitor in submitting the application and the Board is not satisfied that prima facie the merits test is likely to be met, we are entitled to refuse certification.  You should bear in mind that even in circumstances where we do not consider there to be special urgency or we have reservations, on the information available, as to the merits of the case, you are always entitled to lodge an application for civil legal aid.

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6.6A Guidance on special urgency applications - particualar situation

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6.6B Family Actions

Since 1 April 2011 a number of matters that could previously be undertaken in terms of regulation 18(1)(a) [steps that can be taken without the Board’s prior approval] now require the Board’s prior approval.  These steps are:

In assessing applications for special urgency cover the following general guidance will be applicable:

Residence Applications

Any application seeking special urgency cover to raise an action for residence will need to provide information to show that the present arrangements so far as the residence of the child is concerned are such that immediate court action is needed.  This may be because the residence arrangements for the child are in some way unsuitable or potentially risky.  Alternatively, it may be that the status quo in relation to residence has changed, for example, if the child has been retained by one party after exercising contact.  If there is considered to be an imminent risk of removal of the child from the existing primary carer then an early residence action may be considered appropriate in order to preserve the status quo. 

Contact

Applications seeking special urgency cover to raise an action seeking interim contact will generally only be granted
•    in the context of a variation of existing orders;
•    where there has been a failure to obtemper a court order; 
•    where contact was taking place and this has been recently stopped (within the last two months) without good reason; or
•    where parties have only recently ended their relationship (within the last two months) and contact has been denied.

 

Applications for special urgency cover where there has been a recent stopping of contact should detail

Where parties have only recently separated the application for special urgency cover should detail

There are only very limited situations other than this where SLAB will be satisfied that obtaining an interim contact order prior to the determination of a legal aid application is a matter that meets the test of special urgency.  This includes situations where contact may have operated previously but not for some time.

Minute for Variation

Where there has been a change in the existing residence arrangements that would mean an applicant is in breach of an existing order should a variation of that order not take place then a special urgency application will generally be approved.  We will normally allow where there is an issue involving the welfare of the child that demonstrates an immediate variation of a court order is required, for example, where a parent retains a child after contact or where there are concerns about the ability of the parent who has residence to care for a child.  Seeking variation as a matter of special urgency and before an application for civil legal aid determined is unlikely to be approved where the applicant is a parent who has an order for contact and wishes to vary this to obtain more contact to the child. 

Failure to Obtemper

Where an applicant is experiencing difficulty in obtaining contact following a decree awarding such contact a special urgency application will generally be granted to bring a minute for failure to obtemper if it is made clear that some effort has been made to try to resolve matters without immediate recourse to litigation.  A key issue is the question of timing.  Where a special urgency application is lodged immediately following a first failure to obtemper we will generally ask whether the solicitor has written to the opponent to try to resolve matters without recourse to litigation.  Where however more than one contact session has been missed and there has been no meaningful effort made by the opponent to resolve matters then a special urgency application will, in most situations, be allowed.

Where one or more sessions have been missed but then contact is re-established we are unlikely to allow special urgency cover in respect of the missed sessions as we would consider that the special urgency has passed in that situation. 

Obtaining Court Reports for an Order by the Court

Where the court orders a report prior to a grant of civil legal aid being made we will attempt to deal with any requests for special urgency cover for this work as expeditiously as possible.  Where we have been satisfied that an action seeking interim orders needed to be raised urgently authorisation to cover the cost of any report that may be ordered by the court at an early stage in the proceedings will usually be granted.

If however a solicitor is instructed to raise an action seeking an interim order on a private fee paying basis and then applies for civil legal aid and a court date is then fixed or a report ordered which leads you to seek special urgency cover on the basis that there is an imminent court date or a requirement to obtain cover for a report we would generally view this as a self created urgency where no difficulties would have arisen had the solicitor and the client waited for a decision on a legal aid application.  You may also need sanction - you can check using our interactive flowchart.

Special Urgency for appeals (other than to the United Kingdom Supreme Court)

(a)    Preparing and Lodging the Initiating Document or Answers

Regulation 18(1)(a)
and 18(2)(t) provides that special urgency cover is potentially available for initiating or opposing appellate proceedings.  The usual notification requirement for regulation 18(1)(a) applies.   Please note, however, that in dealing with any claims for payment, that we still require to be satisfied that special urgency exists/existed and we may not be satisfied of this where full civil legal aid in respect of the appeal could have been put in place, or extended to cover the proceedings, prior to the requirement to appeal or oppose.   While this is unlikely to include the situation where an application for civil legal aid could have been prepared, submitted and determined prior to the time where the lodging/opposing the appeal became necessary, it may include interlocutory appeals where the lodging of an AMEND application could and should have been submitted.

(b)    Motions to Sist for Legal Aid (or Renewal of Sist)

Where a legal aid application has not yet been lodged, or has been lodged but has not yet been determined at the date the appeal is initiated or opposed, then as soon as the appeal procedure reasonable permits, you should make application to sist for legal aid in terms of Sheriff Appeal Court Rule 7.6.  Regulation 18(1)(a) and 18(2)(d) provide that special urgency cover is available for a motion to sist, subject to the other requirements of such cover.  

(c)    Further procedure

For any further procedure, if legal aid for the appeal is not yet in place, you require to apply to us for prior approval to undertake work in relation to the appeal as matter of special urgency under regulation 18(1)(b).   For the avoidance of doubt, this requirement applies to any procedure beyond the preparation and lodging of the Form 6.2 or answers and incidental work ancillary thereto.   For example, representations and any attendant procedure in relation to provisional procedure orders in terms of Sheriff Appeal Court rule 6.7 would be further procedure requiring an application under regulation 18(1)(b).

Rejected or Continued Applications for Civil Legal Aid

Applications for special urgency cover in terms of regulation 18(1)(b) should not be “self created”.  A self created urgency covers situations where earlier action could have been taken to seek legal aid or where an application for civil legal aid has been made but we have had to reject or continue it for the provision of further information and we have not received any response to our request for such information two weeks after making the request.  We are unlikely to be satisfied that the test of special urgency is met if an application is held pending the provision of information such as an applicant’s statement, third party support or financial information.  We are aware, however, that situations can arise where the timely provision of the information we need is not within a solicitor or a client’s control.  An example of this would be the provision of an employer’s statement of earnings or reports that had to be ordered at a late stage to support a case.  In such situations we would not necessarily consider the urgency to be self created. 

Please remember that each application is considered depending on its own individual facts and circumstances.  It is important that information on the reasons for the special urgency be included within the body of the special urgency application form itself.  Consideration of special urgency applications in terms of regulation 18(1)(b) is a priority matter for the Applications Department.  The Board’s publicly stated target for dealing with such applications is that 97% will be dealt with within two working days.  This quick turnaround of special urgency applications requires solicitors to identify the special urgency reasons within the body of the application itself.  It is not practical to consider all the documentation that may have been submitted in support of a legal aid application.  It is your responsibility as the solicitor acting to identify clearly and concisely the special urgency that has arisen in any one particular case and why steps need to be taken to protect the client’s position immediately. 

It is possible to provide all the information we need to assess special urgency within the application itself.  Examples of applications that set out in detail the need to raise an action urgently are given below. 

1.    Applicant's ex partner had contact with their daughters aged 6 & 10 on X date.  Contact was for the evening and the girls should have been returned to the applicant that evening.  When the applicant called to collect her daughters the ex-partner refused to hand them over.  He was aware that the applicant had arranged to take the girls to visit her mother in England for the holiday weekend.  She had to cancel this.  The applicant called the police who advised her it was a civil matter.  She went to his parents’ house where he lives occasionally and asked for the girls to be returned.  He refused and his parents threatened her.  She asked to see the girls and he refused.  She has not seen the girls since X date.  He has not taken the girls to school since then.  His parents’ house has 3 bedrooms, one for the parents, one for him and one for his sister.  There is no room for the girls.  He initially said if she went to mediation and signed an agreement for contact he would return the girls.  She sent a letter through her solicitors confirming she would enter an agreement for contact and also confirming she had no intention of moving to live in England an issue he had also raised.  He then refused to return the girls and posted the letter on Facebook with a message saying "see you in court."  He has now contacted a solicitor but is still refusing to return the girls.  Court action is necessary and urgent as he works full time, the accommodation at his parents is not adequate, his parents are disabled and cannot look after the girls and he is preventing them from attending school and from having contact with the applicant.

2.    The applicant has received intimation of an application for residence, failing which, contact for her grandson.  The child has lived with her since he was born.  She has a residence order and a parental rights and responsibilities order for her grandson.  The mother of the child has failed to maintain any contact with the child.  She is not interested in the child.  She lets the child down.  She has made threats to the applicant.  She has made false allegations about the applicant to the Social Work Services claiming she is abusing the child.  She has made allegations of rape against the applicant’s other son and then withdrawn these allegations.  She resided with a partner with a drug addiction problem and had no contact with the child during that time.  This relationship broke down.  She assaulted the applicant and damaged the applicant’s house.  She was arrested and charged for this.  She phoned the police at 4 am and accused the applicant of abusing the child.  The police attended at the applicant’s house and found the child sleeping in his bed.  The opponent was charged with wasting police time.  The child is terrified of the opponent whom he has seen shouting, swearing and attacking the applicant.  The applicant has the full support of the Social Work Department.  She wishes the opponent to have no contact with the child and for her parental rights and responsibilities to be removed.  It is not in the child’s best interests to have contact with the applicant.  She is not a fit and proper person.  She made false allegations against the father of the child and had him arrested.  She has been hospitalised following violence between herself and her partner.

Examples of special urgency applications that are not likely to satisfy us of the need to raise an action immediately are given.

1.    The applicant has not had contact for a month despite previously having contact.  Matters cannot be resolved by correspondence and delaying for 3-6 months while the Board consider legal aid would prejudice the applicant and not be in the interests of the children.

2.    Warrant and serve Court action with interim hearing on specific issue order to acquire passport. Service has to be by newspaper as parents whereabouts are unknown

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6.6C Petitions for Judicial Review

Preparing and Lodging the Petition

There may be circumstances where legal aid has either not yet been applied for, or any application not yet determined, at the time where is appropriate or necessary to lodge the petition.

Where you need to lodge the petition to comply with the applicable three month period, then regulation 18(1)(a) and 18(2)(i) provides that special urgency cover is potentially available.  The usual notification requirement for regulation 18(1)(a) applies.   We still require to be satisfied that special urgency exists/existed and we may not be satisfied of this where an application for civil legal aid could have been made and determined prior to the time where the lodging of the petition became necessary, particularly if there is fault or delay either on your part or on that of the applicant.

Sist for Legal Aid

Where you have not lodged a legal aid application or it has not been determined at the date the petition is lodged, then contemporaneously with the lodging of the petition, the applicant should make application to sist for legal aid in terms of RCS 58.4(3).  Regulation 18(1)(a) and 18(2)(d) provide that special urgency cover is available for a motion to sist, subject to the other requirements of such cover.   If no application to sist is made or if no valid application is lodged immediately following the sist to allow the remaining period of sist to be available for processing the application, these are likely to be adverse factors should you need to make a subsequent application for a our prior approval under regulation 18(1)(b) to ca

Permission Stage – Oral Hearings

Where an oral hearing is fixed on the order of the Lord Ordinary under RCS 58.7.(1)(b) you require to apply to us for authorisation to undertake work in relation to the hearing as matter of special urgency under regulation 18(1)(b). Similarly if the Lord Ordinary refuses permission on the papers, and you are instructed to request review a review under RCS 58.8, you need our prior authorisation under regulation 18(1)(b).

Appeal against refusal of permission under Section of 27D of the Court of Session Act 1988

By virtue of RCS 58.10 the appeal is by way of reclaiming motion.  Where there is a grant of legal aid for the proceedings and the assisted person wants to appeal against a refusal or restriction of permission, you should lodge an AMEND application to have the grant extended to cover the appeal procedure.  If work requires to be undertaken as a matter of urgency pending amendment of the grant, or if legal aid has not yet been granted, or an application for legal aid lodged, our authorisation to undertake the work in connection with the appeal as a matter of special urgency is needed.

Subsequent Procedure

If permission to proceed with a petition for judicial review is granted the work required for the procedural hearing and the substantive hearing will be covered by any grant of legal aid in place.   If no legal aid is in place you need our prior approval to undertake the work as a matter of special urgency.   Y By this stage in proceedings, it is increasingly unlikely that we will be satisfied special urgency exists, particularly if there is fault or delay either on your part or on that of the applicant .

Applying for extension of the three month time period

Depending on the circumstances you may need to move quickly to make application to the court but if the statutory time limit has passed any application for special urgency cover needs our authorisation under regulation 18(1)(b).   We may refuse such an application if in fact no special urgency is demonstrated.   Accordingly, when you are applying for authorisation under regulation 18(1)(b) to raise proceedings, you should explain the nature of the urgency and why you cannot wait until a full legal aid application is decided.

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6.7 Expenses and property recovered or preserved

If an applicant receives legal aid, any expenses must be paid into the Legal Aid Fund at the end of the case.  This is a statutory requirement; however, there is no facility for payment of expenses out of the Fund.

If the money paid into the Fund is less than we have paid out, we can look to be paid from any contribution or property recovered or preserved.  However, if we determine that one of the following two situations applies, and that you cannot be paid under legal aid, you do not have to pay in any expenses recovered, as your client is not an assisted person and there is no net liability.  We can therefore release any money we have received.

The reasons provided in regulation 18(7) why we might not be able to pay are that

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6.8 Status of applicant

For the purposes of section 17 of the Act only, regulation 18 provides that a person for whom work is carried out under special urgency is a legally assisted person.  This means they are now  liable to pay a contribution for work carried out as a matter of special urgency whether or not we grant civil legal aid.  The client must continue to provide financial information to establish a proper contribution even where civil legal aid is refused.  The client for whom work is done as a matter of special urgency is, in this respect, in the same position as the client who is receiving civil legal aid.

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6.9 Extension and amendment applications

Where the client is already receiving civil legal aid, needs an extension or amendment of the legal aid, and work not covered by the original legal aid has to be carried out under regulation 18, you do not have to complete an online declaration form with the client.  In these cases, we will have already carried out a means assessment before granting civil legal aid.

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6.10 Sanction applications

The provisions of regulation 21 also apply to work carried out under regulation 18. You can therefore apply for sanction for the employment of counsel, an expert, or work of an unusual nature or work likely to involve unusually large expenditure while carrying out urgent work under regulation 18.  You should follow the usual procedures for applying for sanction and refer to chapter 7 for guidance on applying for sanction.

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6.11 Urgent work including collateral matters

Where you undertake work under regulation 18(1)(a) and (2), we will not object to you undertaking any necessary work at the same time, even though it is not within the terms of regulation 18(2). For example, if an action is being raised containing a crave for a power of arrest, it would be acceptable to include, and move for, interim interdict at the same time. However, if the issue of power of arrest is disposed of and the collateral matter is continued, you will need to apply for certification under regulation 18(1)(b) before carrying out any further work on the collateral matter.

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6.12 Regulation 18 is not a grant of legal aid

It is important to note that work done under regulation 18(1)(a) or (b) is not a grant of legal aid.  You must still apply for, and be granted, legal aid before the work is covered.  We may grant legal aid if we are satisfied there was probable cause at the time the work was done and that it is reasonable to make legal aid available.  If legal aid is not subsequently granted, arrangements exist that afford a substantial measure of protection to solicitors but not to applicants.  Thus, for example, an applicant is not entitled to the benefit of modification of liability in expenses if legal aid is not subsequently granted, and it is important to bear this in mind when, for example, raising proceedings about to become time-barred.  Where work is being done solely by virtue of the provisions of regulation 18, the applicant is not entitled to be described as an assisted person.

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6.13 If the client does not comply with the Board’s requests for information

We have to assess and collect any contribution payable by an applicant who is receiving special urgency cover.  In order to do so, we have to get information from them about their circumstances and any changes to these.

If your client has signed the online declaration and applied for legal aid, and we refuse it, we can still ask them for information, or further information, to allow us to carry out a proper means assessment.  If they do not give us the information we ask for, we may:

You should ensure, before you undertake work under regulation 18, that your client is aware of the implications of not giving us information we ask for.

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6.14 Exemption of court fees

The Sheriff Court Fees Order 1997, as amended, provides for the exemption of certain people from court fees.

When undertaking regulation 18 work as well as work under civil legal aid, you should complete a certificate of exemption to prevent those fees having to be reimbursed by the sheriff clerk, which causes administrative difficulties for the courts.

The Court of Session etc. Fees Order 1997, as amended, also provides under articles 5(c) (Civil Legal Aid) and 5(e) (Legal aid in a matter of special urgency) for exemption for certain people, and the same advice applies in these cases.

The relevant regulations are contained in the Sheriff Court Fees Amendment Order 2002 [2002 no.269] and the Court of Session etc. Fees Order Amendment 2002 [2002 no.270], both of which came into force on 1 July 2002.

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