Handbooks Index

Legislation Handbook

 

Civil Legal Aid


Act of Sederunt

 

1. Citation, commencement and interpretation

2. Revocations and transitional provision

3. Marking of papers of assisted person and notices to be given by such persons

4. Provisions as to expenses in relation to assisted persons

5. Disqualification for continuance of civil legal aid

6. Expenses out of the Scottish Legal Aid Fund

7. Applications in respect of additional fees or percentage increases

8. Period of intimation

Schedule 1

Schedule 2

 

 

ACT OF SEDERUNT (CIVIL LEGAL AID RULES) 1987

S.I. 1987 No. 492 (S.46)

 

Made:

18 March 1987

Coming into force:

1 April 1987

 

As amended to take account of:

 

The Act of Sederunt (Civil Legal Aid Rules) (Amendment) 1996 [S.I. 1996 No. 2148 (S.172)] coming into force on 9 September 1996;  and

 

The Act of Sederunt (Civil Legal Aid Rules) (Amendment No. 2) 1996 [S.I. 1996 No. 3202 (S.242)] coming into force on 1 January 1997.

 

Act of Sederunt (Civil Legal Aid Rules Amendment) 2017 [S.S.I. 2017 No. 332] coming into force on 13 November 2017 (but only in respect of a motion enrolled or lodged on or after 11 December 2017).

 

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 38 of the Legal Aid (Scotland) Act 1986 and of all other powers enabling them in that behalf, after consultation with the Rules Council of the Court of Session and the Sheriff Court Rules Council in accordance with section 38(3) of that Act, do hereby enact and declare:

Regulations

Citation, commencement and interpretation

1.    (1)    This Act of Sederunt may be cited as the Act of Sederunt (Civil Legal Aid Rules) 1987 and shall come into force on 1 April 1987.

(2)    In this Act of Sederunt, unless the context otherwise requires

"the Act" means the Legal Aid (Scotland) Act 1986;

"assisted person" means a person who is in receipt of civil legal aid in the cause in question;

"court" means a court or tribunal specified in paragraph 1 of Part I of Schedule 2 to the Act;

"legal aid certificate" means the document issued by the Board making civil legal aid available;

[0] "motion”, in a simple procedure case, means an incidental orders application;

"proper officer" means the Deputy Principal Clerk of Session, the principal clerk to the Scottish Land Court, a sheriff-clerk or sheriff-clerk depute, the clerk to the Lands Tribunal for Scotland or the registrar of the Employment Appeal Tribunal, as the case may be;

[1]"the Regulations" means the Civil Legal Aid (Scotland) Regulations 1996.

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Revocations and transitional provision

2.    (1)    The Acts of Sederunt set out in the Schedule 1[1A] to these Rules are hereby revoked.

(2)    Notwithstanding the revocation of the Act of Sederunt (Legal Aid Fees)  1971, that Act of Sederunt shall continue to have effect in relation to fees for work done before 1 May 1984.

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Marking of papers of assisted person and notices to be given by such persons

3.    (1)    The words "Assisted Person" shall follow the name of the assisted person on every step of process in the proceedings to which he is a party.

(2)    Where a litigant is an assisted person, he shall lodge

(a)          along with the summons, petition, initial writ or other principal writ by which the cause is commenced;

(b)          where he is not the party initiating the cause, on receipt by him of his legal aid certificate;

(c)          in the case of a cause in the Court of Session as an appellate court, before the appeal, reclaiming motion or motion for new trial is heard;  or

(d)          in the case of an appeal from the sheriff to the sheriff principal, before the appeal is heard,

the legal aid certificate issued to him.

(3)    Where an assisted person lodges a legal aid certificate under rule 3(2)(b), (c) or (d), he shall intimate the lodging of the certificate to all other parties to the cause.

(4)    Where a person who is a party to a cause becomes, during the dependence of that cause, an assisted person, he shall forthwith lodge in process the legal aid certificate issued to him and intimate the lodging of it to all other parties to that cause.

(5)    Where a person, who is a party to a cause, ceases to be an assisted person or the conditions upon which he has been granted civil legal aid have been varied, he shall forthwith serve notice of his ceasing to be an assisted person or the variation (but in the case of variation of a contribution, not the amount), as the case may be, by registered or recorded delivery letter on all other parties to the cause.

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Provisions as to expenses in relation to assisted persons

4.    (1)    Before making an award of expenses against an assisted person, a court may, for the purpose of determining in accordance with section 18(2) of the Act the amount of such award

(a)          require the Board to lodge in process a copy of the application for civil legal aid made by that person, any information obtained by the Board and the determination of the Board so far as relating to the financial eligibility of that person for civil legal aid;

(b)          require a party to the cause in whose favour an award of expenses may be made to furnish for the consideration of the court such particulars with respect to his means as the court may direct;  and

(c)          require from the parties to the cause such further particulars as to their respective means as the court may consider necessary. 

(2)    Where –

(a)          civil legal aid has been made available to a party in the cause in whose favour an award of expenses may be made as well as to a party against whom an award of expenses may be made; and

(b)          the Board has an interest in the amount of expenses awarded to such other person;

the Board may appear and be represented in order to make representations to the court as to the amount of the award of expenses to be made against the assisted person.

(3)    An application made under section 20(4) of the Act for the reassessment of the amount of an award of expenses made against an assisted person shall be made by minute lodged in the original process;  and in such an application the court may apply the procedure prescribed in paragraph (1).

(4)    The court may dispose of a matter under paragraph (1) or (3) in chambers or, in the event of a hearing being required, may direct that such hearing shall be in private.

(5)    Where a general award of expenses is made in respect of a cause consisting of more than one distinct proceedings within the meaning of regulation 4 of the Regulations and the person in whose favour or against whom the award is made has received civil legal aid in connection with one or more of those proceedings, the auditor of the court by which the award was made shall, on the direction of that court, apportion between those proceedings the amount recovered or recoverable by virtue of the award.

(6)    Where expenses have been incurred on behalf of an assisted person in connection with any cause, the court may remit it to the auditor for taxation.

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Disqualification for continuance of civil legal aid

5.    (1)    Where the court, before which there is depending a cause to which an assisted person is a party, after hearing that person, is satisfied that the assisted person

(a)          has without reasonable cause failed to comply with a proper request made to him by the solicitor acting for him to supply any information relevant to the cause;

(b)          has delayed unreasonably in complying with a request as is mentioned in sub-paragraph (a);

(c)          has wilfully given false information in connection with the cause to the solicitor acting for him or wilfully concealed from him any information relevant to the cause;

(d)          has without reasonable cause failed to attend at a diet of the court at which he has been required to attend or at a meeting with the solicitor or counsel acting for him under the Act at which he has reasonably and properly been required to attend;  or

(e)          has been guilty of a contempt of court or has otherwise conducted himself in connection with the cause in such a way as to make it appear unreasonable to the court that he should continue to receive civil legal aid,

the court may direct that civil legal aid shall cease to be made available to that person in relation to that cause.

(2)    Where a court issues a direction under paragraph (1), the proper officer of the court shall send a copy of the direction to the Board.

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Expenses out of the Scottish Legal Aid Fund

6. [2] (1)  An application to the court for an award of expenses under section 19(1) of the Act is to be made by motion in the proceedings.

(2)   The applicant must—


(a)     no later than 28 days before the motion is enrolled or lodged, send the Board [2A]

    (i)     a completed notice in the form set out in schedule 2; and

    (ii)     where the form of notice identifies a requirement for circumstances to be established or vouched, such documents as are required to establish or vouch those circumstances;

(b)     intimate the motion to the Board; and

(c)     lodge with the motion copies of the notice and documents sent to the Board.


(3)   The Board may—

(a)     oppose the motion; and

(b)     appear and be represented at the hearing of the motion.

(4)   For the purposes of intimating and opposing such a motion, the relevant rules of procedure are to apply as if the Board was a party to the proceedings.

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Applications in respect of additional fees or percentage increases

7.[3]   (1)    An application to the court for an additional fee or a percentage increase under regulation 5(4) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 shall be made by motion in the cause.

(2)    There shall be lodged with a motion made under paragraph (1) -

(a)          the account of expenses, or an estimate of the probable amount of those expenses (specifying the amount chargeable to fees and to outlays respectively), as the case may be;  and

(b)          a statement of the grounds on which the application is made, specifying which of the factors in regulation 5(4) of the Regulations mentioned in paragraph (1) are relied on.

(3)    The court may dismiss the application or, where it does not do so, it shall order the applicant to intimate to the Board a copy of -

(a)          the motion;

(b)          the account of expenses, or the estimate of those expenses, as the case may be;  and

(c)          the statement of the grounds on which the application is made.

 

(3A)  [3A]  Such intimation must be made no less than 14 days before the date fixed for the hearing of the motion.

(4)    The Board may -

(a)          appear and be represented at any hearing to consider an application in which there has been intimation under paragraph (3);  and

(b)          cite any party to the cause to attend any such hearing

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Period of intimation

 

8.[4]

 

 

Emslie

Lord President, IPD

Edinburgh

18 March 1987

 

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  Schedule 1

Revocations

 

 

Rule 2

 

 

Instruments revoked

References

Act of Sederunt (Legal Aid Rules) 1958

S.I. 1958/1872

Act of Sederunt (Legal Aid Rules Amendment) 1960

S.I. 1960/2269

Act of Sederunt (Legal Aid Rules) (Amendment) 1961

S.I. 1961/1549

Act of Sederunt (Legal Aid Rules) 1964

S.I. 1964/1622

Act of Sederunt (Legal Aid Rules Amendment) 1971

S.I. 1971/174

Act of Sederunt (Legal Aid Fees) 1971

S.I. 1971/219

Act of Sederunt (Legal Aid Rules and Legal Aid Fees Amendment) 1971

S.I. 1971/1796

Act of Sederunt (Legal Aid Rules and Legal Aid Fees Amendment) 1973

S.I. 1973/1774

Act of Sederunt (Legal Aid Rules Amendment) 1976

S.I. 1976/60

Act of Sederunt (Legal Aid Rules and Legal Aid Fees Amendment) 1976

S.I. 1976/373

 

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  Schedule 2 [5]



[0] Inserted by S.S.I 2017 No. 332 (as above)

[1] As amended by S.I. 1996 No. 3202 (in force from 1 January 1997) to the extent of substituting a reference to the 1996 Regulations for the reference to the 1987 Regulations.

[1A] Substituted by S.S.I 2017 No. 332 (as above)

[2] Substituted by S.S.I. 2017 No. 332 (effective for all motions enrolled or lodged on or after 11 December 2017).

[2A]“The Board” is defined in section 1(1) of the Legal Aid (Scotland) Act 1986 (c.47).

[3] Inserted by S.I. 1996 No. 2148 (in force from 9 September 1996).

[3A] Inserted by S.S.I. 2017 No. 332 above.

[4] Omitted by S.S.I. 2017 No. 332 above.  The respective periods of intimation are now stated within the separate Rules

[5] Inserted by S.S.I 2017 No. 332 (as above)

 

 


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