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Legislation Handbook

 

Legal Aid (Scotland) Act 1986 and associated legislation


Legal Aid (Scotland) Act 1986

 

Part III Civil Legal Aid

 

13. Meaning of "civil legal aid"

14. Availability of civil legal aid

15. Financial conditions

16. Expenses in favour of certain assisted persons

17. Contributions, and payments out of property recovered

18. Expenses of unassisted party

19. Expenses out of the Fund

20. Provisions supplementary to sections 18 and 19

 

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Meaning of "civil legal aid"

 

13.    (1)    This part of this Act applies to civil legal aid.

(2)[1]  In this Act, "civil legal aid" means representation by a solicitor and, where appropriate, by counsel in any proceedings mentioned in Part I of Schedule 2 to this Act, on the terms provided for in this Act, and includes all such assistance as is usually given by solicitor or counsel in the steps preliminary to or incidental to proceedings, or in arriving at or giving effect to a settlement to prevent them or bring them to an end.

(3)    Subject to sections 14 and 15 of this Act and to regulations made under this section, civil legal aid shall be available in connection with any proceedings mentioned in subsection (2) above, except insofar as Part II of Schedule 2 to this Act otherwise provides.

(4)    Schedule 2 to this Act may be varied by regulations made under this section, so as to extend or restrict the categories of proceedings in which civil legal aid is available, by reference to the court or tribunal, to the issues involved, to the capacity in which the person seeking civil legal aid is concerned, or otherwise.

(5)[2]  [Repealed].

(6)[3]  In subsection (4) above, the reference to a court or tribunal includes a reference to a court or tribunal which is established by law for purposes which are or include those of determining persons’ civil rights and obligations and to any person who or group of persons, body, statutory inquiry or other procedure which (however described) is appointed or established by law for such purposes.


Availability of civil legal aid

 

14.[4]    (1)    Subject to section 15 of this Act and to subsections (1F) and (2) below, civil legal aid shall be available to a person if, on an application made to the Board

(a)          the Board is satisfied that he has a probabilis causa litigandi;  and

(b)          it appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid.

(1A)[5]    In the case of proceedings in such courts or tribunals as may be specified in regulations under this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) above and section 15 of this Act, such criteria as may be prescribed in those regulations are met.

(1B) [6]    In subsection (1A) above, the reference to courts or tribunals shall be construed in accordance with section 13(6) of this Act.

(1C) [7] In the case of proceedings described in paragraph 1 of Part II of Schedule 2 to this Act, civil legal aid shall be available to a person only if, in addition to the requirements which have to be met under subsection (1) and section 15 of this Act and subject to paragraph 2 of Part II of Schedule 2, such criteria as may be set out by the Scottish Ministers in directions given to the Board are met.

(1D) [8]A direction given under subsection (1C) may- 

(a)          include criteria in respect of which the Board may require to satisfy itself;

(b)          make different provision for different purposes;

(c)          be varied or revoked at any time.

(1E) [9]Where the Scottish Ministers give a direction under subsection (1C)- 

(a)          the Board must comply with it;

(b)          the Scottish Ministers must arrange for the direction to be published in such manner as they consider appropriate.".

(1F)[10]  Legal aid made available to a person under subsection (1) may be subject to such conditions as the Board considers expedient; and such conditions may be imposed at any time.

(1G)[11]  The Board shall establish a procedure under which any person receiving civil legal aid under this section which is subject to conditions by virtue of subsection (1F) may apply to the Board for a review of any such condition.

(2)    The Board may require a person receiving civil legal aid to comply with such conditions as it considers expedient to enable it to satisfy itself from time to time that it is reasonable for him to continue to receive civil legal aid.

(3)[12]  Subject to subsections (4) to (6) below, the Board shall establish a procedure under which any person whose application for legal aid under this section has been refused may apply to the Board for a review of his application.

(4)[13]  Where –

(a)          the Board has refused an application for civil legal aid by a person who has applied for such aid for the purpose of raising an action against the Board;  and

(b)          the applicant has applied to the Board for a review of his application,

the Board shall, unless they decide to grant the application forthwith, refer the application, together with all relevant precognitions, statements and other papers, including any observations they wish to make on the application, to the sheriff for Lothian and Borders at Edinburgh.

(5)[14]  Subject to section 15 of this Act, and to subsection (2) above, where the sheriff decides –

(a)          that the applicant has a probabilis causa litigandi;   and

(b)          that it is reasonable in the particular circumstances of the case that he should receive legal aid 

he shall so inform the Board, and the Board shall make civil legal aid available to the applicant.

(6)

[15]  A decision made by the sheriff under subsection (5) above shall be final.

 


 

Financial conditions

 

15.[16]   (1)    A person shall be eligible for civil legal aid if his disposable income does not exceed £26,239 a year[17].

(2)    A person may be refused civil legal aid if

(a)          [18]  his disposable capital exceeds [19]£13,017;  and

(b)          it appears to the Board that he can afford to proceed without legal aid.

(3)    For the purposes of this section, a person's disposable income and disposable capital shall be determined by the Board.

(4)

[20]  The provisions of this section are subject to Article 5 of Council Directive 2003/8/EC of the European Council on improving access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes, and the provisions of this section shall be construed accordingly.

 

 

Expenses

 

Expenses in favour of certain assisted persons

 

16.    (1)    [repealed by the Legal Aid Act 1988 (c.34), section 44 and Schedule 4, paragraph 2(a), with effect from 29th July 1988]

(2)[21]  In sections 17 to 20 of this Act

"court" includes tribunal and references to either shall be construed in accordance with section 13(6) of this Act[22].

"legally assisted person" means a person in receipt of civil legal aid in the proceedings in question or a person in receipt of assistance by way of representation in any proceedings to which this Part applies.


Contributions, and payments out of property recovered

 

17.[23]  (1)    Legally assisted persons may be required by the Board to contribute to the Fund in accordance with this section in respect of any proceedings in connection with which they are granted civil legal aid.

(2)    A legally assisted person's contribution under this section shall be determined by the Board, and may include

(a)          if his disposable income exceeds £3,521 a year[24], a contribution in respect of income which shall not be more than [25]one-quarter of the excess (or such other proportion of the excess, or such amount, as may be prescribed by regulations made under this section);   and

   (b)        if his disposable capital exceeds £7,853[26], a contribution in respect of capital which shall not be more than the excess (or such proportion of the excess or such lesser amount as may be prescribed by regulations made under this section).

(2A)[27]  Except in so far as regulations made under this section otherwise provide, any sum of money recovered under an award of or an agreement as to expenses in favour of any party in any proceedings in respect of which he is or has been in receipt of civil legal aid shall be paid to the Board.

(2B)[28]  Except in so far as regulations made under this section otherwise provide, where, in any proceedings, there is a net liability of the Fund on the account of any party, the amount of that liability shall be paid to the Board by that party, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him –

(a)          in the proceedings;  or

(b)          under any settlement to avoid them or to bring them to an end.

(2C)

[29]   Subsection (2D) below applies where, after applying sums paid to the Board under subsection (2A) above in respect of the expenses of any party in any proceedings – 

(a)          there is a surplus in the Fund on the account of the party; and

(b)          the party received, in respect of the same proceedings, assistance from the Commission for Equality and Human Rights under section 28 of the Equality Act 2006 (power of the Commission to provide legal assistance).

 

(2D)

[30]   The Board shall apply the surplus to pay to the Commission any sums due to it under section 29(2) of that Act (Commission’s entitlement to recover expenses incurred in providing assistance) in respect of the assistance provided by it to the party.

 

(3) – (8)    [repealed by the Legal Aid Act 1988 (c.34), section 45 and Schedule 6 with effect from 1 April 1989]

 

Expenses of unassisted party

 

18.    (1)    [repealed by the Legal Aid Act 1988, section 44 and Schedule 4, paragraph 7(a), with effect from 29th July 1988]

(2)[31]  The liability of a legally assisted person under an award of expenses in any proceedings shall not exceed the amount (if any) which in the opinion of the court or tribunal making the award is a reasonable one for him to pay, having regard to all the circumstances including the means of all the parties and their conduct in connection with the dispute.

(3)    None of the following, namely a legally assisted person's house, wearing apparel, household furniture and the tools and implements of his trade or profession shall

(a)          be taken into account in assessing his means for the purposes of subsection (2) above;  or

(b)          be subject to diligence or any corresponding process in any part of the United Kingdom in connection with any award of expenses in proceedings to which this section applies,

except insofar as regulations made under this section may prescribe.


Expenses out of the Fund

 

19.[32]  (1)    In any proceedings to which a legally assisted person is party and which are finally decided in favour of an unassisted party, subject to subsections (2) and (3) below, the court may make an award out of the Fund to an unassisted party of the whole or any part of any expenses incurred by him (so far as attributable to any part of the proceedings in connection with which another party was a legally assisted person).

(2)    Before making an order under this section, the court shall consider making an award of expenses against the legally assisted person.

(3)    An order under this section may be made only if

(a)          an order for expenses might be made in the proceedings, apart from this Act;  and

(b)          [33]in the case of expenses of proceedings in a court of first instance, those proceedings were instituted by the legally assisted person, and the court is satisfied that the unassisted party will suffer financial hardship unless the order is made;  and

(c)          in any case, the court is satisfied that it is just and equitable in all the circumstances that the award should be paid out of public funds.

(4)    The provisions of subsection 3(b) above regarding financial hardship may be modified, in their application to persons who are concerned in proceedings only in a fiduciary, representative or official capacity, by regulations made under this section.

(5)    No appeal may be made against an order made under this section, or against a refusal to make such an order, except on a point of law.

(6)    In this section, "expenses" means expenses as between party and party, and includes the expenses of applying for an order under this section.


Provisions supplementary to sections 18 and 19

 

20.[34]  (1)    For the purposes of section 19 of this Act, civil proceedings are finally decided in favour of an unassisted party

(a)          if no appeal may be made against the decision in his favour;

  (b)          if an appeal may be made against the decision with leave, and the time limit for applications for leave expires and either no application has been made, or leave has been refused;

  (c)          if leave to appeal against the decision is granted or is not required and no appeal is made within the time limit for appeals;  or

  (d)          if an appeal is made but is abandoned before it is determined.

(2)    Where an appeal is allowed to be made late, the court by which the appeal (or any further appeal in those proceedings) is determined may make an order for the repayment by the unassisted party to the Fund of the whole or any part of any sum previously paid to him under section 19 of this Act in respect of those proceedings.

(3)    Where a court decides any proceedings in favour of the unassisted party and an appeal may be made (with or without leave) against that decision, the court may, if it thinks fit, make or refuse to make an order under section 19 of this Act, but any order so made shall not take effect unless

(a)          where leave to appeal is required, the time limit for applications for leave to appeal expires and no application has been made or leave is refused;

(b)          where leave to appeal is granted or is not required, the time limit for appeals expires without an appeal being made;  or

(c)          an appeal is made but is abandoned before it is determined.

(4)    It shall be competent, at any time within such period after the making of an award of expenses to which section 18(2) of this Act applies as may be prescribed by regulations made under this section, for any party concerned with the award to apply to the court or tribunal which made the award for re-assessment of its amount, on the ground that since the award was made there has been a relevant change of circumstances, and on such application the court or tribunal may make such re-assessment of the amount of the award as seems to them proper.

 

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[1] As amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), section 74 and Schedule 8, paragraph 36(3), and Schedule 9 (in force from 30th September 1991) to the extent of substituting ", where appropriate," for "(so far as is necessary)".

[2] Repealed by Section 6 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp7), in force from 6 July 2001.

[3] Inserted by the Section 6 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp7), in force from 6 July 2001.

[4] Regulation 46(2) and (3) (Convention applications) of the Civil Legal Aid (Scotland) Regulations 1996 (in force from 7 October 1996) provides that this section shall be modified to the extent specified in the regulation.  The effect of the modification is to enable legal aid to be made available to a person for certain specified proceedings without the Board requiring to be satisfied that he has probabilis causa litigandi or to consider whether it is reasonable in the particular circumstances of the case that he should receive legal aid. Amended by section 65 of the Legal Profession and Legal Aid (Scotland) Act 2007, in force from 25 November 2010

[5] Inserted by Section 6 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp7), in force from 6 July 2001.

[6] Inserted by Section 6 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp7), in force from 6 July 2001.

[7] Inserted by section 71 of the Legal Profession and Legal Aid (Scotland) Act 2007 [2007 asp 5] and commenced by S.S.I. 2007 No. 57 (Commencement No. 1 Order 2007) in force from 8 February 2007

[8] Inserted by section 71 of the Legal Profession and Legal Aid (Scotland) Act 2007 [2007 asp 5] and commenced by S.S.I. 2007 No. 57 (Commencement No. 1 Order 2007) in force from 8 February 2007

[9] Inserted by section 71 of the Legal Profession and Legal Aid (Scotland) Act 2007 [2007 asp 5] and commenced by S.S.I. 2007 No. 57 (Commencement No. 1 Order 2007) in force from 8 February 2007

[10] Inserted by section 65 of the Legal Profession and Legal Aid (Scotland) Act 2007, in force from 25 November 2010

[11] Inserted by section 65 of the Legal Profession and Legal Aid (Scotland) Act 2007, in force from 25 November 2010

[12] As amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), section 74 and Schedule 8, paragraph 36(4) (in force from 30th September 1991) to the extent of inserting "Subject to subsections (4) to (6) below,".

[13] Inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), section 74 and Schedule 8, paragraph 36(5) (in force from 30th September 1991).

[14] Inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), section 74 and Schedule 8, paragraph 36(5) (in force from 30th September 1991).

[15] Inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), section 74 and Schedule 8, paragraph 36(5) (in force from 30th September 1991).

[16] Regulation 46(2) and (3) (Convention applications) and 47(2) (Applications under the European Judgments Convention) of the Civil Legal Aid (Scotland) Regulations 1996 (in force from 7 October 1996) provide that this section shall be modified to the extent specified in the regulation concerned.  The effect of the modification is to provide that a person applying for legal aid for certain specified proceedings shall be eligible for legal aid without regard to his income or capital.

[17] As amended by S.S.I. 2011 No. 217 (in force from 11 April 2011 and applying only in relation to any case where an application for civil legal aid is made to the Board on or after 11 April 2011).  The previous disposal income eligibility limit was £25,450.

(In the case of legal aid for a claim in respect of personal injuries, higher limits of disposable income and disposable capital were prescribed in terms of regulation 10A of the Civil Legal Aid (Scotland) Regulations 1987.  These higher limits were abolished by S.I. 1994 No. 1049 (in force from 5 May 1994) in relation to any case where civil legal aid is made available on or after 5 May 1994 and all work in respect of that legal aid was done on or after that date).

[18] Amended by S.S.I. 2011 No. 217 (in force from 11 April 2011 and applying only in relation to any case where an application for civil legal aid is made to the Board on or after 11 April 2011).  The previous upper disposable capital limit was £12,626.

(In the case of legal aid for a claim in respect of personal injuries, higher limits of disposable income and disposable capital were prescribed in terms of regulation 10A of the Civil Legal Aid (Scotland) Regulations 1987.  These higher limits were abolished by S.I. 1994 No. 1049 (in force from 5 May 1994) in relation to any case where civil legal aid is made available on or after 5 May 1994 and all work in respect of that legal aid was done on or after that date).

[19] Inserted by S.S.I. 2011 No.217 (in force from 11 April 2011)

[20] Inserted by S.S.I. 2004 No. 493 (in force from 4 December 2004).

[21] As amended by the Legal Aid Act 1988 (c.34), Schedule 4, paragraph 2 (in force  from 29th July 1988) to the extent of deleting "In this section and".

[22] As amended by Section 6 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp7), in force from 6 July 2001.

[23] Regulations 46(2) and (3) (Convention applications) and 47(2) (Applications under the European Judgments Convention) of the Civil Legal Aid (Scotland) Regulations 1996 (in force from 7 October 1996) provide that this section shall be modified to the extent specified in the regulation concerned.  The effect of the modification is to provide that a person applying for legal aid for certain specified proceedings shall not require to pay any contribution to the Fund in respect of income or capital, nor shall he require, where there is a net liability to the Fund on his account, to pay the amount of that liability to the Board out of any property which is recovered or preserved for him.

[24] Amended by S.S.I. 2010 No. 217 (in force from 11 April 2011 and applying only in relation to any case where an application for civil legal aid is made to the Board on or after 11 April 2011).  The previous limit of disposable income for contribution purposes was £3,415 a year.

[25] By regulation 3 of S.I. 1993 No. 970 (in force from 12 April 1993) there is prescribed one third as the proportion of the excess of disposable income which a contribution cannot exceed.  Regulation 3 applies only in relation to any case where an application for civil legal aidis made to the Board on or after 12 April 1993.

[26] As amended by S.S.I. 2011 No. 217 (in force from 11 April 2011 and applying only in relation to any case where an application for civil legal aid is made to the Board on or after 11 April 2011).  The previous limit of disposable capital for contribution purposes was £7,617.

[27] Inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), section 74 and Schedule 8, paragraph 36(6) (in force from 26 August 1991).

[28] Inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), section 74 and Schedule 8, paragraph 36(6) (in force from 26 August 1991).

[29] Inserted by Schedule 3, paragraph 4, of the Equality Act 2006 and commenced by the Equality Act 2006 (Commencement No.3 and Savings) Order 2007, in force from 1 October 2007.

[30] Inserted by Schedule 3, paragraph 4, of the Equality Act 2006 and commenced by the Equality Act 2006 (Commencement No.3 and Savings) Order 2007, in force from 1 October 2007.

[31] As amended by the Legal Aid Act 1988 (c.34), Schedule 4, paragraph 7(b) (in force from 29th July 1988) to the extent of substituting "in any proceedings" for "in proceedings to which this section applies".

[32] As amended by the Legal Aid Act 1988 (c.34), Schedule 4, paragraph 8 (in force from 29th July 1988) to the extent of substituting "to which a legally assisted person is party and which are finally decided in favour of an unassisted party" for "to which this section applies".

[33] In section 19(3)(b), the word “severe” was repealed by the Legal Profession and Legal Aid (Scotland) Act 2007, schedule 5 (in force from 1 October 2008).

[34] As amended by the Legal Aid Act 1988 (c.34), Schedule 4, paragraph 9 (in force from 29th July 1988) to the extent of substituting "section" for "sections 18 and…”

 


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