Civil legal aid and the Sheriff Appeal Court


Tuesday, Dec 22, 2015

This update provides information about changes to the regulations relating to civil legal aid and related matters arising from further implementation of the Courts Reform (Scotland) Act 2014 in relation to the Sheriff Appeal Court and its civil jurisdiction.
 
The jurisdiction of the Sheriff Appeal Court will be extended to civil appeals with effect from 1st January 2016. A number of changes to the legal aid regime are being brought into effect on the same date. As well as regulatory change, an important new provision in the Legal Aid (Scotland) Act 1986 will come into effect from 1st January 2016.
 
The update contains the following sections:
 
Legislative changes
Summary of provisions relating to the Sheriff Appeal Court   
Details of the provisions relating the Sheriff Appeal Court   
Further provisions in relation to applications for civil legal aid in appeal proceedings in the Sheriff Appeal Court   
Legislative changes
Legal Aid (Scotland) Act 1986 
Section 132 and Schedule 5 paragraph 14(4) of the Courts Reform (Scotland) Act 2014 make provision for amendment of Part 1 of Schedule 2 of the Legal Aid (Scotland) Act 1986 to include the Sheriff Appeal Court in the list of courts and tribunals for which civil legal aid is available. This provision in brought into force by The Courts Reform (Scotland) Act 2014 (Commencement No. 5, Transitional and Savings Provisions) Order 2015, with effect from 1st January 2016. Back to top
 
 
The Civil Legal Aid (Scotland) (Miscellaneous amendment) Regulations 2015
The regulations were laid on 9th November 2015 and come into effect on 1st January 2016.  A full copy of the regulations is available here.   Our legislation handbook will also be updated to reflect the changes. 

The regulatory changes are to:
•    Civil Legal Aid (Scotland)(Fees) Regulations 1989
•    The Civil Legal Aid (Scotland) Regulations 2002 Back to top
 
Summary of provisions relating to the Sheriff Appeal Court
The new regulations contain the following provisions or have the effect stated under reference to existing provisions:
 
Applications
Appeal proceedings in the Sheriff Appeal Court are distinct proceedings.
  • Appeals against final interlocutors require a separate application for civil legal aid
  • Appeals against other interlocutors do not require a separate civil legal aid application, but the existing certificate requires to be amended to cover the appeal procedure
  • Appeal proceedings initiated in the Sheriff Appeal Court and remitted to the Court of Session are not distinct proceedings, and therefore covered by the original certificate Back to top
Sanction for Counsel
  • Sanction for counsel is required in the Sheriff Appeal Court
  • Solicitor advocates are included in the definition of “counsel” who may be sanctioned in the Sheriff Appeal Court
  • Sanction for counsel will be granted by SLAB only where it is satisfied it is appropriate to do so Back to top
Accounts, Fees and Taxation 
  • Solicitors may opt to claim either detailed fees per Schedule 5 or inclusive fees per Schedule 6
  • Summary cause appeals paid on the same basis
  • Additional fee is possible where the court considers there was higher responsibility
  • Counsel fees are payable per Table B of Schedule 4
  • Taxation of solicitors or counsel’s legal aid fees and outlays in the Sheriff Appeal Court is before the auditor of the sheriff court in which the proceedings were raised Back to top
Other provisions
The regulations also make further provision in relation to civil legal aid accounts generally by providing that other than in relation to proceedings before the United Kingdom Supreme Court, the Court of Session and the Sheriff Appeal Court, only a single account is to be submitted by the nominated solicitor.   This single account rule is currently what applies in criminal cases. Back to top
 
Details of the provisions relating the Sheriff Appeal Court
Appeal proceedings in the SAC are distinct proceedings requiring a fresh application for legal aid 
Regulation 4 of the Civil Legal Aid (Scotland)(Fees) Regulations 1989 (the “Civil Fees Regulations”) is amended to provide that proceedings in the Sheriff Appeal Court are distinct proceedings. Distinct proceedings normally require a separate application for civil legal aid. There are some circumstances, however, where SLAB accepts that a separate full application for legal aid is not required.
 
The position in relation to final decisions and final judgements in sheriff court cases is that where the decision which is the subject of the appeal, disposes or purports to dispose of the action, a fresh application for civil legal aid is required.
 
Appeals against interlocutors which do not dispose of the cause are treated differently in that no separate application is required. However, steps still require to be taken in to ensure legal aid cover in relation to the appeal process. Where no legal aid application has been determined in relation to the proceedings at first instance, the initiation of the appeal will be susceptible to special urgency cover – see section on Special Urgency below.
 
For appeals against interlocutors other than final interlocutors, where a grant of legal aid has been made for the proceedings and the assisted person has instructed an appeal then you should lodge an AMEND application to have the scope of the grant extended to cover the appeal procedure. If work requires to be undertaken as a matter of urgency pending amendment of the grant, our authorisation to undertake the work in connection with the appeal as a matter of special urgency will be required.
 
You also need to submit an AMEND application where you have previously submitted an application for civil legal aid for the proceedings at first instance, but the application has not been determined at the time the requirement to appeal against the interlocutor arises.
 
Whether against final interlocutors/judgements or not, civil legal aid will only be available for the appellate proceedings where we are satisfied that there is probable cause to appeal, and that it is reasonable for legal aid to be made available for the appeal. As such, whether seeking cover to do this work using an AMEND application or a special urgency submission, you need to give us sufficient details to satisfy us on both aspects. See also the following for general details of items that should be lodged with an application for civil legal aid relating to an appeal.
 
For further provisions relating to applications for civil legal aid in appeals to the Sheriff Appeal Court see the Appendix to this Update. Back to top
 
Appeal proceedings initiated in the Sheriff Appeal Court and remitted to the Court of Session (along with certain other remitted cases) are not distinct proceedings, and therefore covered by the original certificate
The Civil Legal Aid (Scotland) Regulations 2002 (the “Civil Regulations”) are amended to the effect that they now provide for four circumstances where remission of a case to another forum does not constitute distinct proceedings, and are therefore covered by the existing certificate. For the purposes of this update, the main provision of relevance is that where the Sheriff Appeal Court remits an appeal to the Court of Session in terms of section 112 of the Courts Reform (Scotland) Act 2014. For further detail see regulation 4(2) of the Civil Fees Regulations as amended. Back to top
 
Sanction is required for the use of counsel in the Sheriff Appeal Court
Regulation 21 of the Civil Regulations is amended to stipulate that the prior approval of SLAB is required for the employment of counsel in the Sheriff Appeal Court, whether senior or junior. You should note that the regulations also provide that in the context of the Sheriff Appeal Court, the definition of “counsel” includes solicitor advocates, and that accordingly a solicitor with extended rights of audience may be employed and paid as counsel in the Sheriff Appeal Court providing the prior approval of SLAB to that employment has been obtained, even although a solicitor has a right of audience in the Sheriff Appeal Court as a solicitor. A solicitor with extended rights of audience appearing in the Sheriff Appeal Court without prior authorisation from SLAB for the employment of counsel may not claim legal aid fees other than as a solicitor.
In lodging an application for sanction a full explanation of why it is appropriate to employ counsel in the case should be provided. Back to top
 
Solicitors’ Fees
The Civil Fees Regulations have been amended to provide a range of options which are flexible and adapt to the range of appeal work that will arise.
 
(a) No distinction between ordinary and summary cause fees
A central component is that all appeal work emanated from civil procedure in the sheriff court will be subject to the same fee arrangements. Accordingly there is no distinction in the Sheriff Appeal Court as to the tables or rates of fees applicable in ordinary cause and summary cause appeals. Of course, the procedures for summary cause and ordinary cause appeals differ, and to the extent that the procedures shape the fee assessment, there will be differences between the procedures, but the underlying rates are the same.
 
(b) Option to choose detailed or inclusive fees
Beyond the unified approach to fees, recognition has been given to the fact that there will be some appeals where detailed fees are appropriate, and others where inclusive the fees that would be payable under the current Sheriff Principal appeal procedure will be more suitable. This recognition has given rise to the provision in the amended regulation 5(1A) of the Civil Fees Regulations that a solicitor may opt whether to chose detailed fees in terms of Schedule 5 of the Civil Fees Regulations or inclusive fees in terms of Schedule 6. The decision may be made at case conclusion. Any account, as now, should be lodged within 4 months of the completion of the proceedings. Importantly the option is one or the other – a solicitor may not claim fees partially on detailed fees and partially on inclusive fees.
 
(c) Additional fee
Regulation 5(4) of the Civil Fees Regulations has been amended to extend the option to apply for an additional fee (currently available in the Court of Session) to proceedings in the Sheriff Appeal Court where detailed fees are claimed under Schedule 5. If the Sheriff Appeal Court is satisfied that the level of responsibility undertaken by a solicitor in the conduct of the proceedings under reference to a list of factors merits it, an additional fee may be allowed.
 
The factors are:
(a) the complexity of the proceedings and the number, difficulty or novelty of the questions involved;
(b) the skill, specialised knowledge and responsibility required of and the time and labour expended by the solicitor;
(c) the number and importance of the documents prepared or perused;
(d) the place and circumstances of the proceedings or in which the solicitor's work of preparation for and conduct of it has been carried out;
(e) the importance of the proceedings or the subject matter thereof to the client;
(f) the amount or value of money or property involved; and
(g) the steps taken with a view to settling the proceedings, limiting the matters in dispute or limiting the scope of any hearing; and
(h) any other fees and allowances payable to the solicitor in respect of other items in the same proceedings and otherwise charged for in the account
 
You should note that the court, in considering a motion is concerned only with the issue of whether an additional fee is to be allowed. While the regulation also provides that the amount of any additional fee allowed is up to 50% of the fees otherwise allowable, the task of assessing the amount of the increase lies with SLAB, and in the event of a dispute, the Auditor. The court is not concerned with the assessment of the amount of the additional fee, and regard should be had for this in any motion made.
 
Both SLAB, and as accords the auditor, have regard to the above factors in assessing the amount of any additional fee allowed by the court.
It is a matter for the solicitor to ensure appropriate and sufficient instructions are in place and that client expectation is properly managed, particularly where the allowance of an additional fee will impact on the amount the client is required to pay in terms of any client contribution or property recovered or preserved.

The separate route to a possible additional fee for Schedule 6 fee claims remains and is unaffected by the new provisions. Back to top
 
Fees for Counsel 
Regulation 10 of the Civil Fees Regulations is amended to provide that the fees payable to advocates and solicitor advocates, in cases where SLAB has given prior approval for the employment of counsel in the Sheriff Appeal Court, shall be as provided for in the Table B of Schedule 4 of the Civil Fees Regulations
 
Auditor for the Sheriff Appeal Court and Taxation
In terms of the amendment to regulation 2 of the Civil Fees Regulations, the auditor for disputes and decisions in relation to legal aid fees and outlays payable to solicitors and counsel in the Sheriff Appeal Court, is the auditor for the sheriff court in which the proceedings were heard at first instance. Back to top
 
Further provisions in relation to applications for civil legal aid in appeal proceedings in the Sheriff Appeal Court
The following provisions apply whether the application is a full civil application, or an application to amend an existing certificate to extent to cover appeal proceedings.
 
Applications for civil legal aid or AMEND applications – items to lodge
For all appeals, including appeals against final interlocutors and appeals against other interlocutors, we need:
  • a copy of the judgement/interlocutor appealed against, and/or
  • a summary of the decision and the reasons given by the court, if the appeal is against an interim order or another decision in relation to which the reasons for the decision are not contained in an interlocutor or note;
We also need:
  • a statement of the grounds of appeal (either in the form of a draft/principal copy Form 6.2 or a separate statement otherwise providing the detail that would be required by Sheriff Appeal Court Rule 6.2.(2)), and
  • your comments on the prospects of success or, if counsel has been instructed an opinion the grounds, and on prospects.
You should bear in mind that the onus is on the applicant to satisfy us that there is both probable cause for the appeal and that it reasonable to grant legal aid for the appeal. Accordingly you must give us a lucid explanation of the basis upon which the court decision is susceptible to appeal. Back to top
 
Sist for legal aid
Where a separate legal aid application has not yet been lodged, or has been lodged but has not been determined the applicant can make application to sist for legal aid in terms of Sheriff Appeal Court Rule 7.6. Special urgency cover is available for a motion to sist.
 
Special Urgency for appeals to the Sheriff Appeal Court
Regulation 18 of the Civil Legal Aid (Scotland) Regulations 2002 allows us to make legal aid available for specially urgent work undertaken before an application for civil legal aid is determined or an existing certificate amended. We need to be satisfied that there is probable cause and that it is reasonable to grant legal aid. You should bear in mind that there are two distinct forms of cover:
  • Cover under regulation 18(1)(a) and 18(2) in which work which falls within any of the categories listed in the regulation may be carried out if required as a matter of special urgency and notification is given to us within 28 days of the work being done
  • Cover under regulation 18(1)(b)for other work, not included in a listed category, but in relation to which we are satisfied that the work is required as a matter of special urgency, and for which we have given prior approval before any of the work in question commences.
It is very important that the two are not confused, and that you understand that work not listed in regulation 18(2) is not covered or susceptible to being covered unless we have given our prior approval for the work. In addition, it is not simply urgency, but special urgency that we have to find established. Urgency which could reasonably have been avoided may not be special urgency. 
 
(a) Preparing and Lodging the Form 6.2 or Answers
Regulation 18(1)(a) and 18(2)(t) provides that special urgency cover is potentially available for initiating or opposing appellate proceedings. The usual notification requirement for regulation 18(1)(a) applies. Please note, however, that in dealing with any claims for payment, that we still require to be satisfied that special urgency exists/existed and we may not be satisfied of this where full civil legal aid in respect of the appeal could have been put in place, or extended to cover the proceedings, prior to the requirement to appeal or oppose. While this is unlikely to include the situation where an application for civil legal aid could have been prepared, submitted and determined prior to the time where the lodging/opposing the appeal became necessary, it may include interlocutory appeals where the lodging of an AMEND application could and should have been submitted.
 
(b) Motions to Sist for Legal Aid (or Renewal of Sist)
Where a legal aid application has not yet been lodged, or has been lodged but has not yet been determined at the date the appeal is initiated or opposed, then as soon as the appeal procedure reasonable permits, you should make application to sist for legal aid in terms of Sheriff Appeal Court Rule 7.6. Regulation 18(1)(a) and 18(2)(d) provide that special urgency cover is available for a motion to sist, subject to the other requirements of such cover.
 
(c) Further procedure
For any further procedure, if legal aid for the appeal is not yet in place, you require to apply to us for prior approval to undertake work in relation to the appeal as matter of special urgency under regulation 18(1)(b). For the avoidance of doubt, this requirement applies to any procedure beyond the preparation and lodging of the Form 6.2 or answers and incidental work ancillary thereto. For example, representations and any attendant procedure in relation to provisional procedure orders in terms of Sheriff Appeal Court rule 6.7 would be further procedure requiring an application under regulation 18(1)(b). Back to top
 
For more information, please contact: Catriona Whyte, Head of Legal Services (Civil), whyteca@slab.org.uk

 


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