Handbooks Index

 

Part 4: Civil legal aid


Chapter 7

After a grant, and prior approval needed

 

7.1 Changes of nominated solicitor
7.2 Stage reporting
7.3 General Issues
7.4 Interim Payment
7.5 Unprompted Reports
7.6 When should an unprompted report be submitted
7.7 Reports must always be provided:
7.8 Employment of counsel or solicitor-advocates
7.9 General – employment of counsel or solicitor-advocates
7.10 Information to be provided with an application for employment of counsel
7.11 Identification of factors
7.12 Other issues
7.13 Requests for senior counsel
7.14 Opinions and consultations
7.15 All requests
7.16 Senior counsel
7.17 Retrospective grants
7.18 Employment of counsel for reparation proceedings
7.19 General – counsel in reparation cases
7.20 How to apply for sanction for counsel in reparation cases
7.21 Information to be provided with an application to employ counsel in reparation cases
7.22 Identification of factors in reparation cases
7.23 Requests for senior counsel in reparation cases
7.24 Extent of grant of counsel in reparation cases
7.25 Opinions and consultations in reparation cases
7.26 All requests in reparation cases
7.27 Senior counsel in reparation cases
7.28 Retrospective grants in reparation cases
7.29 Employment of expert witnesses
7.30 General – expert witnesses
7.31 Templates
7.32 Cases where you cannot use a template
7.33 Expert witnesses and witnesses as to fact
7.34 Application form
7.35 Documents to be submitted
7.36 Timing of sanction applications
7.37 Where the expert has been employed under advice and assistance
7.38 Choice of expert
7.39 Experts’costs
7.40 Limits on expenditure
7.41 Work of an unusual nature or likely to involve unusually large expenditure
7.42 General – work of an unusual nature or likely to involve unusually large expenditure
7.43 Reporters in cases involving orders under Section 11 of the Children's (Scotland) Act 1995
7.44 Guidelines for applying for sanction
7.45 Form of application
7.46 Documents to be submitted
7.47 Issues to be addressed
7.48 Details of costs to be provided
7.49 Mediation
7.50 Approval for mediation in family cases
7.51 Approval for mediation in non-family cases
7.52 Supervised contact

7.52A Parenting apart
7.53 Family Therapy
7.54 Vulnerable witnesses (Sanction for unusual work or work likely to incur unusually large expenditure – special measures for child witnesses and vulnerable adult witnesses)
7.55 Evidence on commission
7.56 Accounts information
7.57 Retrospective sanction
7.58 Extensions or amendments to grants of civil legal aid
7.59 Execution of diligence
7.60 Prior approval needed
7.61 Exception: diligence on certain alimentary orders
7.62 Retrospective approval
7.63 Approval not available for certain proceedings

  

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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.


NOTE
Changes made to sections on reporting and sanctions in this chapter in March 2009 mean that paragraph numbering has changed throughout
.

7.1 Changes of nominated solicitor

The right of a solicitor to give up a legal aid case is recognised by section 31(2) of the 1986 Act. The circumstances in which you may do so are a matter of professional practice. Having decided that you should cease to act, you do not have to get our prior permission to be relieved from acting. You must, however, in terms of regulation 25(1), tell the assisted person and us that you have withdrawn, and tell us why using the online ‘Cease to Act’ function.

If you are told the assisted person no longer wishes you to act, you must tell us (regulation 25(2)), using the online ‘Cease to Act’ function.

While an assisted person may ask you to stop acting for them, they cannot insist on transferring their legal aid to another solicitor. They must get our approval to nominate another solicitor – the newly instructed solicitor will usually apply for our approval on their behalf, using the online ‘Transfer Registration’ application.

Under regulation 25(3) we must consider whether

We may invite comments from the original nominated solicitor, particularly on

However, the decision on the application to nominate another specified solicitor is entirely ours.

Any transfer to a new solicitor will only be effective from the date we authorise it, and cannot be made retrospectively. Any work done by the incoming solicitor, or on their instructions, before that date, will not be allowable under the legal aid. If you need to do work as a matter of urgency, you should contact us by phone or fax to arrange an urgent transfer.

Transfer of an application – no legal aid decision made – where a transfer of agency is being sought prior to the determination of the application, the incoming solicitor should make a transfer application using the online ‘Transfer Application’ function.

The Board will notify the incoming solicitor of the decision taken and, where granted, the incoming solicitor will now have access to the online record including notifications.

The incoming solicitor must check the status of the application prior to undertaking any work on behalf of the client as the application may still be outstanding. Where the work is urgent a special urgency application may require to be submitted.

Transfer of Legal Aid Certification – Solicitor moving firm but nominated solicitor unchanged - The nominated solicitor must notify us in writing of all cases that they are taking with them to any new firm and provide details of the new firm code. As these are not transfers no client online declaration form is required.

Nominated solicitor moving firm but client wishes to stay with firm - Transfer applications require to be submitted by the solicitor within the firm who is now to act on behalf of the applicant. A signed declaration from the applicant is required. Alternatively, we will accept a signed letter from the acting solicitor advising that they have no objection to the cases being transferred to another solicitor within the firm, together with a list of cases to be transferred and a note of the new solicitor’s practitioner code.

If a transfer is required because the nominated solicitor commences maternity leave/has ill health or passes away, the normal transfer procedure applies: a client’s transfer declaration requires to be completed and the online line transfer application submitted.

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7.2 Stage reporting

The reporting process whereby you send us reports at key stages of a case:

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7.3 General Issues

Please refer to the civil legal aid application submitted to us when making a stage report. If legal aid has been transferred to you from another solicitor and you do not know what information was previously given to us, please provide a summary of the case to date.

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7.4 Interim Payment

You can ask for stage payments but you do not need to submit a stage report with such a request. We will consider the stage payment request without any reference to stage reporting.

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7.5 Unprompted Reports

Where a case is sisted for legal aid you do not have to submit a stage report. However if legal aid is subsequently granted and the case remains sisted you should submit an unprompted stage report to tell us of the progress being made in the case. You should submit this report as soon as possible after the grant of legal aid is made but no later than three months after the grant of legal aid.

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7.6 When should an unprompted report be submitted

The Civil Legal Aid (Scotland) Regulations 2002 as amended impose a duty on the solicitor, counsel and the applicant or assisted person to report changes in circumstances to us. Regulation 23 states that a solicitor should immediately inform us of:

Regulation 23(4) states that a solicitor is not precluded from reporting such circumstances because of any privilege arising out of the relationship between solicitor and client.

You must submit unprompted reports where there has been a material change affecting the assumptions on which we granted legal aid. As a result of these changes:

The report will allow us to take the appropriate action.

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7.7 Reports must always be provided:

Remember that you must always tell us if:

Providing an unprompted report in the situations set out in this guidance allows us to consider whether the grant of civil legal aid should remain in place. It should be borne in mind that simply because, for example, an expert does not agree with the assisted person or applicant’s position this does not mean that the grant of civil legal aid will necessarily be terminated. You need to provide the reasons why you consider that the grant of civil legal aid should continue notwithstanding that a situation has arisen that needs an unprompted report to be lodged. These reasons may include but are not restricted to:

If an unprompted response is not lodged and it becomes clear that an event occurred during the course of proceedings that should have been the subject of such a report then consideration will be given to the question of payment of the account. If the failure to provide an unprompted stage report involved a significant issue that would have impacted on the continuing grant of civil legal aid then consideration will be given to not paying for any work undertaken from the point when the unprompted stage report should have been lodged unless it can be shown that there are good reasons for making such payment notwithstanding the failure to provide an unprompted stage report.

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7.8 Employment of counsel or solicitor-advocates

Note: You should refer to paragraphs 7.20-30 for employment of counsel or solicitor-advocates in reparation cases.

7.9 General – employment of counsel or solicitor-advocates

Regulation 21 lists the situations where our prior approval is needed for employing senior and junior counsel. “Counsel” includes solicitor advocates acting in the Sheriff Appeal Court, Court of Session and the Supreme Court. The regulation does not lay down any criteria for approval.

You must get our prior approval to employ counsel, whether it is junior, two junior, senior or senior with junior counsel, except

 

In all other situations, you must get our approval for the use of counsel.

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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7.10 Information to be provided with an application for employment of counsel

It was decided in the Petition of Matthew McAllister [2010] CSOH 112 that section 21(4)(a) of the 1986 Act which states, “Criminal legal aid shall consist of representation, on terms provided for by this Act

(a) by a solicitor and, where appropriate, by counsel”,

in addition to providing a definition also sets a test, in very wide terms, which has to be satisfied in order that we give sanction for counsel. In arriving at this conclusion the court made clear that

While this case concerned a criminal legal aid application the wording in relation to representation applies equally to civil legal aid. The definition of civil legal aid at section 13 of the Act can equally be seen to set a test, in very wide terms, for the employment of counsel.

You must ask for sanction to employ counsel as soon as possible once the need for counsel has been identified. The request should

You should also give

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7.11 Identification of factors

We have to consider the whole circumstances of the case including any number of factors such as

This list is not exhaustive and other factors, not listed, justifying the use of counsel could be present in a case.

You must explain the specific circumstances of the case, rather than referring to abstract concepts that may or may not apply in the specific case. The information needs to be adequate to allow us to take an overall view of the case.

Parity of representation may not, of itself, be enough to justify employing counsel. In cases where we have sanctioned counsel for another legally-aided party in the action, this may, however, be a persuasive factor. We will consider carefully whether there is any basis for distinguishing between two legally-aided parties by granting counsel to one party only.

Where the case is likely to involve cross-examination or criticism of another solicitor practising in the same locality or of some other locally-based court official, we will view this as a supportive factor.

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7.12 Other issues

Applications for sanction may refer to an individual solicitor’s particular circumstances, and persuasive factors could include:

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7.13 Requests for senior counsel

Many of the factors already given apply to employing senior counsel as well as junior counsel. Where you ask for senior counsel, we will consider

Where we grant sanction for senior counsel acting alone and then you ask for junior at the instance of senior, we will consider whether

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7.14 Opinions and consultations

7.15 All requests

Where you ask for the limited use of counsel either to provide an opinion or for consideration purposes, you should –

We will always consider the purpose of getting the opinion –

In addition –

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7.16 Senior counsel

Requests for senior counsel should be for advice on a very complex issue or a novel point of law, for example –

If appropriate, a copy of any note from junior counsel recommending the employment of senior counsel should be provided.

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7.17 Retrospective grants

You must apply to us, if you need sanction, before employing counsel. We may grant it retrospectively, if we would have done so had prior approval had been sought, but only if we consider there was special reason why it was not sought. For example, in a Court of Session case where senior counsel was employed and no prior sanction was sought because the local agents believed the Edinburgh agents had sought sanction and vice versa, special reason might be said to exist. We do not regard oversight as a special reason. (The provisions for retrospective authority do not apply where prior approval was asked for but refused.)

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7.18 Employment of counsel for reparation proceedings

7.19 General – counsel in reparation cases

Regulation 21 of the Civil Legal Aid (Scotland) Regulations 1996 lists the situations where you need our prior approval to employ senior and junior counsel.  The regulation does not lay down any criteria for approval.

You must get our prior approval to employ counsel, whether it is junior, two junior, senior or senior with junior counsel, except

where the proceedings are in the Supreme Court (unless counsel other than Scottish counsel is to be employed, in which case you need our approval)

for one junior counsel in the Court of Session.

In all other situations, you must get our approval for the use of counsel.

7.20 How to apply for sanction for counsel in reparation cases

You must apply for sanction to employ counsel  by using the online ‘Sanction’ function  as soon as possible once you identify the need for counsel. 

If you are asking for more than one counsel, you require to submit separate sanctions for each one.  We cannot consider a request for sanction unless you give us enough information to show the need to involve counsel and the benefit they will bring to the case.

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7.21 Information to be provided with an application to employ counsel in reparation cases

When asking for sanction to employ counsel you should

You should also give

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7.22 Identification of factors in reparation cases

We have to consider the whole circumstances of the case including factors such as

This list is not exhaustive and other factors, not listed, justifying the use of counsel could be present in a case.

Where there is a formal admission of liability, tell us so that we can take it into account.  If damages for a reasonable amount (minimum £20,000) are likely to be recovered there is unlikely to be any loss to the Fund, so you should give us information about this.  We may then put less emphasis on cost effectiveness but it is important to bear in mind that even then we have to consider each case on its own merits.

The level of damages being claimed in a case is only one factor to take into account in assessing whether to grant sanction for the use of counsel.  Of itself, a claim for significant damages will not be sufficient to warrant the employment of counsel.  Not all proceedings where a high level of damages are being sought are complex so even if the damages being sought are significant you still need to provide

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7.23 Requests for senior counsel in reparation cases

Many of the factors already shown apply to the employment of senior counsel as well as junior counsel.  Where you ask for senior counsel, we will consider:

 

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7.24 Extent of grant of counsel in reparation cases

Where we grant sanction for counsel, this will cover their involvement throughout the case unless your request was for specific steps only.  We will set out the extent of the grant in any correspondence we send you.  If we do not restrict their use, you may instruct counsel to undertake the necessary work in the case.

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7.25 Opinions and consultations in reparation cases

7.26 All requests in reparation cases

Where you ask for limited use of counsel, either to give an opinion or to consider the case –

We will always consider why you need the opinion –

In addition –

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7.27 Senior counsel in reparation cases

Requests for senior counsel should be for advice on a very complex issue or a novel point of law, for example: 

If appropriate, send us a copy of any note from junior counsel recommending the employment of senior counsel.

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7.28 Retrospective grants in reparation cases

You must apply to us, if you need sanction, before employing counsel.  We may grant it retrospectively, if we would have done so had prior approval been sought.  However, we will only do so if we consider there was special reason why it was not sought.  For example, if senior counsel had been employed in a Court of Session case and the local agents believed the Edinburgh agents had sought sanction and vice versa, we might consider there was special reason.  We do not regard oversight as a special reason.  (We cannot grant sanction retrospectively if prior approval was sought but we refused the request).

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7.29 Employment of expert witnesses

7.30 General – expert witnesses

Regulation 21 provides that our prior approval is needed for employing any expert witness. No specific criteria for approval are laid down in the regulations and the matter is at our discretion.

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7.31 Templates

We have introduced templates for using certain experts and mediation. The categories covered and the maximum levels for expenditure (excluding VAT) allowed for the report are shown in the templates which can be viewed by selecting ‘Expert & Templates’ from the ‘Create Sanction’ screen, then from ‘Type’ selecting ‘Template’.

If you apply for sanction using a template you do not need to send us substantial information about the case such as copies of the pleadings or comparative quotes. In addition, you do not have to provide the name of the expert you are instructing.

Where there is an appropriate template, you can use it:

You cannot use the templates:

You should use the template for an expert report or mediation where you are seeking sanction for the first time for that particular type of expert to prepare a report or to use mediation.

The templates do not allow you to instruct an expert to produce a supplementary report, even if you have sufficient funding left over within the template limit from the first report from that expert. If you need a supplementary report you should select ‘Expert & Templates’ from the ‘Create Sanction’ screen, then from ‘Type’ select ‘Custom’.

You can use more than one template when seeking sanction. Where it is your first request to instruct a specific type of expert or to use mediation you can ask for one expert or authority for mediation in each relevant template category. For example, in a reparation case you can use the templates for reports from a health and safety expert and an orthopaedic surgeon. If, however, you want sanction for two health and safety expert reports you can only use a template for one. You will need to make a separate sanction request for the second health and safety report by selecting’ Expert & Templates’ from the ‘Create Sanction’ screen, then from ‘Type’ selecting ‘Custom’. You do not need to apply for all the experts you want for the case using the templates at one time. If, for example, you previously asked for sanction for a health and safety expert using a template and you now want sanction for an orthopaedic surgeon’s report you can use Section D.

Where you have authority to instruct an expert report using the templates in Section D you do not have to ask us for cover for their subsequent attendance at court should this be necessary.

When you ask for sanction using the templates, by marking a cross in the relevant expert or mediation box you are confirming that:

NOTE
Paragraph 7.33 added March 2009

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7.32 Cases where you cannot use a template

We have not introduced templates for cases where we would need a substantial amount of information before authorising a particular type of expert’s involvement. If the expert you wish to use is not included in the list of templates you should complete the sanction application at Section E.

You cannot use the templates at Section D to get retrospective authority to use an expert or mediation. If you need retrospective authority, complete Section E.

NOTE
Paragraph 7.34 added March 2009

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7.33 Expert witnesses and witnesses as to fact

While you must get our prior approval to employ expert witnesses in all types of case, there is some dubiety about whether certain witnesses should be regarded as "experts" or not.

Generally speaking, a witness may be deemed to be an expert where

The expert does not actually have to be called to give evidence to meet the description "witness" . For example, a surveyor instructed to provide a valuation of a property is certainly an expert witness, even if the parties have agreed to abide by his opinion and he is not likely to be asked to give evidence.

By the same token, someone skilled and expert in their field may be cited and give evidence, but does not need our sanction if their evidence is factual. For example, a medical practitioner may be cited to give evidence of a litigant’s injuries, and of the treatment given, where their contact with the litigant has arisen in an ordinary doctor/patient relationship (in other words, the evidence is factual, although the facts are of a medical nature).

The following notes may help you decide whether you need our approval for certain witnesses as experts:

Inquiry agents: Inquiry agents are reporting on facts as they find them as a result of their investigations. You may, for example, want to employ an inquiry agent to trace an opponent; to follow an opponent to establish whether they are working; to enquire into the welfare of children; to establish evidence of an opponent's mode of life to support a defence to their financial claims; or to get evidence of adultery. In these circumstances, you do not need our sanction in terms of the regulations governing the employment of expert witnesses. (You may, however, need our prior approval if the work is of an unusual nature or is likely to involve unusually large expenditure.)

Applicant's own chartered accountant: If chartered accountants are to be employed specifically, having had no previous engagement with the litigant, they would be acting in the role of experts. However, occasionally you may want to get the evidence of a chartered accountant who is normally employed by the litigant to do their books, to give a report based on their existing knowledge of the litigant’s circumstances. That is not a case where sanction as an expert witness is needed.

Searchers: Occasionally during civil litigation you may need to employ a professional firm of searchers to do a search in the Registers of Scotland. These would not be classed as experts providing opinionative evidence, and you would not need sanction.

GPs and hospital doctors: Family doctors are not classed as experts, even though they have specialised medical knowledge not available to the layman. Such a witness would be giving evidence on the litigant’s complaints about their symptoms and on the treatment given. There is no need for any special authority to employ a general practitioner.

Hospital doctors below the status of consultant may have to speak to injuries observed by them and treatment given, but they would be classed as witnesses as to fact, and no special authorisation is needed.

Medical consultants: Whether a medical consultant counts as an expert witness depends on whether they are speaking to treatment they have given to the litigant, or whether they have been consulted specially for an opinion in connection with a court action. For example, someone may wish to bring a reparation action against their employers for an injury sustained at work, for which their GP has previously referred them to a consultant specialist for treatment. The solicitor will obviously wish to get a report from that specialist, both about the nature of the patient's infirmities (and the treatment given) and on what the prospects are for continuing disability.

In this situation, the specialist is not acting as an expert witness but giving evidence as to fact, although of a specialised nature. The opinion they offer is no more than the professional opinion they would form in the normal course of giving treatment to a patient. They can therefore be regarded as a witness as to fact.

However, you may refer an injured party to a specialist to get an opinion on, say, the degree of disability suffered and the likelihood of its persistence. In these circumstances, the specialist would not have been involved with the case had it not been for the court action and they are, therefore, an expert witness.

Photographers: Photographers employed to take photographs of a locus are not classed as expert witnesses.

Where a welfare and/or a financial guardianship order is being sought in terms of the Adults with Incapacity (Scotland) 2000 any reports that need to be provided to satisfy the court that the orders are appropriate do not need our prior sanction as the reports are not expert reports. If, however, the reports will cost in excess of £2,000 then sanction is needed as this involves unusually large expenditure. Paragraph 7.43 details the requirements for sanction for unusually large expenditure.

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7.34 Application form

A sanction request must always be made via our online function. Using this means we should receive all the basic information needed for a prompt decision, and should avoid the need for continuation. In a case of exceptional urgency, you can apply by telephone, promptly followed by the an online sanction application referring to the telephone decision. Sanction requests should not be made via an online message or by fax.

NOTE
References to forms amended March 2009

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7.35 Documents to be submitted

If you are not applying for sanction using the templates, you should send us:

NOTE
Amended March 2009

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7.36 Timing of sanction applications

In general, you should apply for any form of Board authority as soon as possible and not leave it until a proof or other hearing is imminent. With an expert witness, however, you should delay asking for sanction until it is clear that a specific expertise will be needed to advance the case and that a particular expert is available to provide the necessary evidence. You should take care the issues the expert is to address are covered within the grant of legal aid.

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7.37 Where the expert has been employed under advice and assistance

Where you have an increase in authorised expenditure under advice and assistance for a report from an expert who is to be a witness in the proceedings, and they are to carry out further work, you should apply for sanction when you apply for legal aid or once civil legal aid has been granted.

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7.38 Choice of expert

Where you are not using a template, you should identify an expert skilled in the specific field in which the expert evidence is needed. This is particularly important in medical negligence cases. In all reparation cases, you should state whether the expert is to address issues about liability, causation or quantum.

In choosing an expert, you must consider whether they are appropriate for the particular case in question. For example, if the case is fairly routine and unexceptional, we would need a very convincing argument to authorise the “foremost expert in his field in Europe”, if he charged more than other experts with sufficient skill to deal with the case.

It will normally be more expensive to employ an expert witness who is based at some distance from the court than one close to the court. Before authorising the use of a “distant” expert, we must be satisfied that no comparable witness is available near the court.

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7.39 Experts’ costs

We also have to take into account the fact that the cost of using the expert will be met out of public funds. We expect you to apply the test of whether a litigant in a privately funded case would be likely to incur the cost of employing the witness. We must be satisfied that it is reasonable in all the circumstances of the case to sanction that expenditure.

You must make it clear whether

When applying for sanction of an expert, if you are not using a template you should

If the cost of the report is more than £1,750, you should provide competitive quotes in support of the sanction application.

Any sanction granted may include a condition that costs may not exceed a specified amount or that specified work may not be carried out.

NOTE
Amended March 2009

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7.40 Limits on expenditure

When giving approval for employing an expert witness for, or including, a report or other specific work, we will normally impose a limit on the cost to be incurred. You must make the expert fully aware of that limit and point out that, if the work is going to cost more, you will have to ask us for an increased limit to allow the work to continue. Where you are using a template the limit on costs to be incurred is clearly set out on the sanction form.

Where you do not draw the limit to the expert’s attention, we will pay only up to the amount fixed and you may be personally liable to the expert for any extra costs. Where an expert has been told of the limit, but it has been unavoidably exceeded because of circumstances outwith their control, we may still meet the expert’s reasonable costs if we are satisfied that this is appropriate.

If we grant sanction subject to a ceiling of expenditure, this does not allow the expert witness to automatically claim a fee at that ceiling. We will examine all claims, which must be adequately vouched and include a detailed breakdown of how the claim has been calculated. In particular, we expect to see

If you are in any doubt about the charges likely to be allowed, our accounts assessment staff will be happy to offer guidance.

If you already have sanction to get an expert’s report, you do not need separate sanction to cover any necessary attendance at court by that expert. If, however, you got the report before legal aid was granted, whether using advice and assistance or not, you will need sanction for their attendance at court.

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

7.42 General – work of an unusual nature or likely to involve unusually large expenditure

Regulation 21 provides that you need our prior approval for work of an unusual nature or likely to involve unusually large expenditure. No specific criteria for approval are laid down in the regulations and the matter is at our discretion.

All work done, and any item of expense incurred in a legal aid case, is, of course, subject to our scrutiny and possible abatement, and may also be subject to taxation by the auditor. To an extent, the requirement for prior approval for unusual work or unusually expensive work operates as a safeguard for the solicitor. It is much better for you to know in advance that we object to some item of expense, rather than finding out later, once the work has been done and the expense incurred, that we will not accept it as a valid charge on the Legal Aid Fund.

Where the cost of the work likely to involve unusually large expenditure is less than £2,000, you do not need our sanction. However, if you would feel more comfortable getting our prior sanction, even though it is to incur expenditure of less than £2,000 and the work is not unusual, you can do so.

It is not possible to compile a list of situations where work should be regarded as being of an unusual nature or likely to involve unusually large expenditure. The following are examples of some common situations.

These examples are not by any means exhaustive.

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7.43 Reporters in cases involving orders under Section 11 of the Children's (Scotland) Act 1995

Where report is ordered by the court and the cost will not exceed £3,000 there is no need for prior sanction to be obtained irrespective of whether the report is ordered ex proprio motu or not. If, however, the cost of the report is to be in excess of £3,000 our prior approval will be needed for this work, irrespective of whether the report has been ordered ex proprio motu or not.  You therefore need to know if a reporter considers they cannot prepare their report within the limit of £3,000 as sanction will then be needed from us. Any sanction application should give details of the costs to be incurred and reasons why funding beyond £3,000 is required. The £3000 limit is exclusive of VAT and outlays that may be incurred to third parties when preparing the report e.g. where a medical report is needed but is inclusive of outlays incurred directly by the reporter such as travel costs. The cap applies to each individual report prepared in a case rather than being a global limit to cover the cost of several reports. However, there are different arrangements if you are seeking the report prior to a grant of legal aid - please see our interactive flowchart.

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7.44 Guidelines for applying for sanction

7.45 Form of application

Sanctions request must be submitted via the online ‘Sanction’ function. Using this function means we should receive all the basic information and papers needed for a prompt decision, and should avoid the need for continuation. You should apply as soon as possible and not leave it until a proof or other hearing is imminent. If you are seeking sanction in a case of exceptional urgency, apply by telephone, promptly followed by an online ‘Sanction’ application, referring to the telephone decision. A request for sanction should not be made via an online message or by fax.

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7.46 Documents to be submitted

If proceedings have already been commenced when you seek sanction, you should

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7.47 Issues to be addressed

Where the work involves getting an order of the court (for example, for an open commission), you should get our approval before the court is asked to consider the matter. The application should

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7.48 Details of costs to be provided

When applying for sanction for work of an unusual nature or likely to involve unusually large expenditure, you should

Any sanction granted may include a condition that costs may not exceed a specified amount or that specified work may not be carried out.

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7.49 Mediation

7.50 Approval for mediation in family cases

Mediation is available both from Relationship Scotland Member Services (RSMS) and from accredited solicitors who are members of Comprehensive Accredited Lawyer Mediators (CALM).

RSMS has generally focused on disputes involving children and provided the service free. Obviously, where the service is provided free there is no legal aid implication and you can make use of the service without getting our prior authority.

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

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

Where you want to make use of mediation involving CALM or RSMS where a fee is charged, you must get our approval before incurring the outlay. We recommend you use the template for family mediation for this work.

Legal aid will cover the client's half share of the total mediation fee, but not any charges for the opponent’s half share, unless the opponent is also receiving legal aid (or advice and assistance).

These rules apply to situations of voluntary mediation. Where the court ex proprio motu makes a remit for mediation and the client is an assisted person, the Legal Aid Fund will bear the client's half share of the mediation expenses as a consequence of that remit, and you do not need our prior approval. However, where the assisted person is considering asking the court to make a remit for mediation, you should apply to us for prior approval as unusual work.

NOTE
Amended March 2009

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7.51 Approval for mediation in non-family cases

The costs of non-family mediation may be allowed as an outlay in a solicitor’s account under advice and assistance or civil legal aid, provided certain conditions are met. (See Part III chapter 4, paragraph 4.6, for more information about mediation under advice and assistance.)

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

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

As with family mediation cases, we will regard the costs of mediation in non-family cases as an outlay in your account. We recommend you use the template for non-family mediation for this work.

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

We will normally only consider requests for mediation involving mediators accredited by the Association of Mediators, the Centre for Dispute Resolution (CEDR), Core Solutions Group, Core Mediation or the Law Society of Scotland under its Accord scheme, although we may also agree to the use of other accredited specialists.

If you wish to make use of mediation facilities, you must get our approval for unusual expenditure before incurring the outlay in civil legal aid.

Where you are not using a template, we need the following information before we can consider a request for sanction:

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

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

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7.52 Supervised contact

The cost of paid for supervised contact may be allowed where we are satisfied that they are necessary to take forward consideration of the case and that the work will help to decide the case, either judicially or extra judicially. Supervised contact, as distinct from supported contact, should not generally be necessary but there may be situations where supported contact is not sufficient and supervised contact involving the one on one presence of a contact centre’s staff member throughout the session is needed. A sanction application should be lodged which addresses the following issues:

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

We need enough information to know whether paid for supervised contact will assist the court in taking a final decision on contact. It is not a cost that we can meet indefinitely. If a final interlocutor is made ordering contact on a supervised paid for basis then this is an expense that the client has to meet from their own funds as we cannot be responsible for any costs in connection with supervised contact after the court case has concluded.

You should also bear in mind that the cost of paid for supervised contact may be allowed under advice and assistance where we are satisfied that it may help to resolve a dispute over contact without the need for litigation. You should ask us for funding to cover the cost of supervised and/or supported contact under advice and assistance where appropriate to help resolve a dispute.

Information we have from contact centres and from court ordered sessions suggests that 10 supervised sessions are generally sufficient to show if contact is working well and can move on from being supervised to being supported or able to take place without supervision of any sort.  While we cannot fund this work indefinitely and at some point, contact will need to move from a centre this early support provides an early means of establishing if contact can work with initial sessions taking place in a safe environment to allow all parties to be assured that contact can work even if there have been issues between the parties in the past or if there has been a gap since contact was last exercised.

Requests for increases should:

NOTE
Amended March 2009

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7.52A Parenting apart

Relationships Scotland run Parenting Apart information sessions for parents who are going through the process of separation or divorce or who are in dispute over contact arrangements.  The sessions help parents to understand the process of separating, what their children need from them when they are living apart and how to work together and put their children’s needs first.  They help parents to see the situation from their children's perspective.  Parenting Apart is normally delivered as a one-off small group workshop with a mix of mums and dads lasting about 3 hours.  It can also be delivered one-to-one.  Each parent attends a different session.  Independent evaluation of the Parenting Apart programme shows that parents negotiate more effectively after participating in Parenting Apart.  They make more effective use of the support that family lawyers and other professionals can provide.  Parenting Apart sessions are currently free due to funding from the Scottish Government.  They are available throughout Scotland through Relationships Scotland's family mediation services.  Contact details can be found at www.relationships-scotland.org.uk/find-a-local-service/family-mediaiton-services   More information about the sessions, including frequently asked questions, a short film and resources for parents can be accessed at: www.parentingapart.org.uk

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7.53 Family Therapy

The cost of paid of family therapy may be allowed where it is ordered by the court as a means of trying to resolve a family dispute.  This work may bring about a more satisfactory means of settling a case.  A solution brought about by this work is more likely to allow all parties to feel they have been heard and to let them understand the needs of their children rather than their own needs. 

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

Where a sanction application is made for family therapy you need to:

Where applicable, a copy of the interlocutor ordering family therapy should be provided with the sanction application.

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7.54 Vulnerable witnesses (Sanction for unusual work or work likely to incur unusually large expenditure – special measures for child witnesses and vulnerable adult witnesses)

NOTE
Paragraphs 7.53 to 7.55 added November 2007

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

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

Where the special measure identified as necessary to support the child witness or adult vulnerable witness is the use of a

this work will not be classed as unusual , and no prior sanction is needed.

If, however, the work is likely to cost more then £2,000, you must get sanction under the provisions for incurring unusually large expenditure.

Where the special measure identified as necessary to support the child witness or adult vulnerable witness is or includes:

this work will be classed as unusual work and you therefore need prior sanction (even if the estimated costs do not exceed £2,000).

Sanction requests should contain sufficient information to explain why the measure is needed to help the witness give their best evidence.

We therefore consider all sanction requests made in respect of the vulnerable witnesses legislation to be unusual work and/or unusually large expenditure. As explained in paragraph 7.56, we cannot grant retrospective authority for work involving unusually large expenditure as the regulations prevent us from doing so. It is therefore essential that you apply timeously for sanction, or you will not be paid for this work.

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7.55 Evidence on commission

If you are the person seeking this special measure, you can seek the costs of the commissioner appointed from the Board if the commissioner is not a sheriff or judge, in which case the Scottish Courts Service meets the costs.

It is also important to include in your sanction request all associated costs such as clerks’ fees, shorthand writers’ fees, accommodation costs and travel costs. Any associated costs not sanctioned timeously cannot be paid for from the Fund.

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7.56 Accounts information

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

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7.57 Retrospective sanction

You normally need our prior approval to employ counsel or expert witnesses, or to do work of an unusual nature, but we may grant retrospective sanction if satisfied the employment would have been approved and that there was special reason why prior approval was not applied for. "Special reason" means that mere oversight would not be sufficient justification for a grant of retrospective sanction. We might grant retrospective sanction where, for example, the need to employ counsel or expert arose at the last moment, without an opportunity of seeking prior approval.

The power to grant retrospective sanction applies only to counsel, expert witnesses and unusual work. It does not apply to work likely to involve unusually large expenditure, and we should not, therefore, be asked to grant retrospective approval in such cases.

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7.58 Extensions or amendments to grants of civil legal aid

You should ask for an extension to an existing grant of legal aid or an amendment to an application already lodged by submitting an online ‘Amend’ application. We treat applications for extension in the same way as initial applications for civil legal aid, considering the tests for probable cause and reasonableness. We will already have assessed or be assessing the client’s financial eligibility, so you should remind the client of their duty to tell us of any change in circumstances.

You should clearly set out the extent of the existing grant of civil legal aid and the scope of the extension. Extension requests should be accompanied by the following documents:

The opponent has to receive intimation of the proposed extension and be given an opportunity to lodge objections within 14 days. You can carry out specially urgent work under regulation 18, in which case you should submit a ‘Special Urgency’ request with the’Amend’ application . The effective date of the extension is the date we are satisfied the statutory tests are met for that matter. Where we refuse an extension application, and a reconsideration of this decision is sought, a fresh ‘Amend’ application requires to be submitted.

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7.59 Execution of diligence

7.60 Prior approval needed

In general, you must get our prior approval for any step in the execution of diligence: that is, diligence in execution of a final or interim decree as opposed to diligence on the dependence of proceedings. You will normally need this approval in the context of diligence upon a decree obtained in the course of proceedings for which legal aid was granted. You should send your application to take steps in diligence to the Principal Sums Unit of the Treasury Department. Do not submit a sanction application. If we approve the diligence, you should include its cost in your account under the legal aid certificate for the proceedings or, if you have already submitted that account, send a supplementary account for the diligence alone. There is no time limit for seeking or granting approval for diligence.

For diligence and execution of a file or interim decree in situations relating to aliment, interim aliment or periodical allowance only, you should apply for sanction.

NOTE
Final paragraph added August 2009

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7.61 Exception: diligence on certain alimentary orders

An exception to the general rule in paragraph 7.59 exists by virtue of regulation 22(2) and (3) in relation to some forms of diligence carried out within a specified time limit on certain alimentary orders, that is –

(i) a decree following on an action for aliment within the meaning of the Family Law (Scotland) Act 1985;

(ii) an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976, or for the making of a periodical allowance under section 8 of the Family Law (Scotland) Act 1985; or

(iii) any order for the periodical payment of sums for the maintenance of any person which, by virtue of the Maintenance Orders Act 1950, the Maintenance Orders (Reciprocal Enforcement) Act 1972 or the Civil Jurisdiction and Judgments Act 1982, may be enforced in Scotland.

The exception also applies to any settlement arrived at to prevent or bring to an end proceedings in which a decree or order such as those in paragraphs i) to iii) above may be granted.

The type of diligence that may be carried out in execution of such a decree, order or settlement without our prior approval is restricted to arrestment. However, where the arrestment is an earnings arrestment under the Debtors (Scotland) Act 1987, the necessary prior service of a charge for payment may be carried out without our approval, in terms of regulation 22.

The exception for diligence by execution of an arrestment, or for service of a charge for payment as a preliminary step before an earnings arrestment, applies only where the arrestment or charge is carried out within 12 months of the date of the alimentary decree, order or settlement specified above. If you wish to lodge an arrestment, or serve a charge before an earnings arrestment, outwith that period, even in the case of an interim decree where the proceedings are still ongoing under a current legal aid certificate, you must get our prior approval.

If this exception applies, there is no limit on the number of arrestments that can be carried out, but your account will be subject to the usual taxation test of reasonableness.

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7.62 Retrospective approval

Where you carry out any step in the execution of diligence without our prior approval (where necessary), under regulation 22 (4) we can approve the step retrospectively. We may do this if we consider that, had you applied timeously, we would have approved it, and that there was special reason why you did not apply for prior approval.

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7.63 Approval not available for certain proceedings

If you need to raise an action of furthcoming, you must make a separate application for legal aid. You also need to make a separate application if you propose to attempt enforcement by civil imprisonment or sequestration.

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