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For solicitors
Legal aid guidance
Civil guidance
Advice and Assistance
Table of fees
Availability of advice and assistance
Definition of advice and assistance
Matters covered by civil advice and assistance
Granting standard advice and assistance
Matters covered by a diagnostic interview
Choosing the correct A&A category code: Civil or Children’s
Diagnostic advice and assistance matter categories
Policy and procedure where providing a diagnostic interviews only or multiple interviews
Moving from a diagnostic interview to standard advice and assistance: when and how to do this
Approved subject matters for standard advice and assistance: deciding whether a matter is ‘distinct’
Civil advice and “representation”: steps that can and cannot be taken before a court or tribunal
Relationship with civil legal aid applications
Who may provide civil advice and assistance?
Who can receive advice and assistance?
Commencement of advice and assistance: the relevant date
The role of unqualified persons in the provision of advice and assistance
Questions to ask your client in determining whether to grant advice and assistance
Client information and satisfying yourself on eligibility before granting
List of your responsibilities
TOOL: apply for/oppose an order under the Adults with Incapacity (Scotland) Act 2000
Advice and Assistance application procedures
Completing the advice and assistance application form
Advice and assistance and the assessment of financial eligibility
Financial eligibility of children for advice and assistance (non-criminal matters)
Advice and assistance for reciprocal enforcement of maintenance orders: special eligibility arrangements
Financial eligibility for advice and assistance: evidence you must supply
Advice and assistance applications: the applicant’s declaration
Telephone grants of advice and assistance
Granting advice and assistance: timescales for notifying us
Identifying case types where A&A is appropriate: distinct and reasonably ancillary matters
Advice and assistance and the basic limits of expenditure: which level applies?
Authority to exceed the initial expenditure limit for advice and assistance: template increases
Advice and assistance: non-templated increases
Providing advice and assistance to children
Advice and assistance and changes of nominated solicitor
Second solicitor giving advice and assistance on the same matter: prior authority required
Procedure for withdrawing from giving advice and assistance
Private client charging after a grant of advice and assistance has ended: what you must do
Rule on the simultaneous provision of A&A and civil legal aid
Verification of financial eligibility for advice and assistance or ABWOR
Financial verification for civil advice and assistance: an introduction
Financial verification for advice and assistance: general principles
Advice and assistance eligibility and financial verification: your client’s responsibilities and what they should be aware of
Advice and assistance and financial eligibility: assessment of capital
Advice and assistance and financial eligibility: assessment of income
Advice and assistance and financial eligibility: cases where no documentary evidence of eligibility is immediately available
Advice and assistance and financial verification in prisoners’ cases: aggregation of partner’s resources
Advice and assistance and financial verification: required age of documentary evidence
ABWOR in civil proceedings
The scope and availability of ABWOR in civil proceedings
Proceedings requiring our prior approval before granting ABWOR
Financial eligibility tests for ABWOR: case type exemptions
Your responsibility to decide on your client’s eligibility for ABWOR
Requirement for our prior approval for certain ABWOR cases: tests applied
Civil ABWOR: the limit of authorised expenditure
Exemptions to rules on property recovered or preserved in Upper Tribunal proceedings
Increases in authorised expenditure under advice and assistance and ABWOR employment of third parties
The use of counsel under Advice and Assistance
Advice and assistance increases for expert witnesses who are based at a considerable distance from the court and your client: factors to address
Advice and assistance increases for mediation
Limited availability of advice and assistance for tracing relatives or witnesses: “fishing enquiries”
Increases for different types of case under A&A and ABWOR
TOOL: A&A increases and templates guide
Civil Legal Aid
Table of fees
Availability of Civil legal aid and application procedures
Definition of civil legal aid
Applications by corporate or unincorporated bodies and sole traders
Courts and tribunals in which civil legal aid is available
Proceeding for which civil legal aid is not (or only partially) available: ‘excepted proceedings’
Civil legal aid: statutory tests for applications
Other rights or facilities
Civil legal aid for matters outwith Scotland
What date is legal aid effective from?
The essential components of a civil legal aid application: forms, statutory statements, declaration
Civil legal aid and the role of opponents
Civil legal aid applications: statements and other documents we need
Rejection of civil legal aid applications: consequences of missing information
Civil legal aid applications by someone unable to sign or suffering from a mental disorder
Civil legal aid applications by person resident outwith the UK
Civil legal aid application by or on behalf of children: assessing ‘general understanding’ of instructing a solicitor
Our power to modify or impose conditions on grants of legal aid
Refusal of legal aid applications
Applications for civil legal aid for proceedings where we are a party
Disputing information: what to send us if you are acting on behalf of your client who is the opponent
Financial assessment
Financial eligibility for civil legal aid: general conditions and limits
Choosing the right financial information form for the client
Civil legal aid assessment period and its consequences: ‘period of computation’
Taking partners’ financial resources into account: civil legal aid
Civil legal aid: how we calculate income and what’s included
Civil legal aid: assessment of capital resources and relevant disregards/allowances
Financial assessment where applicant has deprived themselves of resources: no disregards given
Calculating disposable capital and disregards: are the resources the subject matter of dispute?
Financial assessment for special categories of applicant
Appellate proceedings: is a fresh financial assessment and additional contribution necessary?
Adults With Incapacity (Scotland) Act 2000: modified financial assessment process
Will my client be liable to pay a contribution?
Assessing probable cause and reasonableness
Overview of reasonableness factors
Timing of the application and the status of the dispute
Prospects of success
Cost and benefit analysis
Strategic impact or wider public interest of the case
Merits of different types of case
TOOL: find the merits guidance for your case
Cohabitee cases
Gender Recognition cases
Cases involving disputes over children
Matrimonial property disputes
Divorce – non-financial provision cases
Divorce – financial provision cases
Applications for legal aid by curators ad litem for children
Interdicts, power of arrest and non-harassment orders
Reparation cases
Petition for Judicial Review
Legal aid for judicial review of our decisions
Actions of payment
Actions of reduction
Caution
Safeguarders – Adults with Incapacity
Fatal Accident Inquiries
Appellate proceedings
Applications by children
Defamation
Mortgage rights proceedings – Home Owner and Debtor Protection (Scotland) Act 2010
Actions in relation to private sector tenancies (including eviction proceedings in the First-tier Tribunal for Scotland (Housing and Property Chamber))
Proceeds of Crime cases
Adults with Incapacity (AWI)
Modified application procedures
Civil legal aid for child abduction/custody cases: simplified application arrangements for Hague Convention and European Convention on the custody of children cases
Civil legal aid cases under the European judgements convention: modified application procedure
Civil legal aid cases under the Maintenance Orders: Reciprocal Enforcement
Legal aid and cross-border disputes within the European Union: modified application procedure
Civil legal aid for maintenance obligation cases under Council Regulations (EC) No. 4/2009: circumstances where no financial assessment required
Special urgency
Cover for work done before a decision on the legal aid application: the nature and types of special urgency
Special urgency: satisfying yourself that a client is financially eligible
List of circumstances in which you may undertake urgent work without prior approval
Arrangements for collection of your client’s contributions in special urgency: the client mandate
Assessment of special urgency applications: tests applied by us
Special urgency guidance: family cases
Rejected or continued applications for civil legal aid: limited circumstance in which special urgency is available
The importance of providing reasons for special urgency in the body of your application
Special urgency, expenses, and property recovered or preserved: circumstances where we may not be able to pay you
Status of your client under special urgency: contributions and requirement to provide financial information
Special urgency and extension or amendments to existing legal aid
Special urgency and sanction applications: usual sanction procedure applies
Special urgency and undertaking necessary collateral work: timing issues
Special urgency work’s status: issues your client to be aware where it is not a grant of legal aid
Special urgency situations where the client does not comply with our requests for information: potential effects
Special urgency: procedure for exemption from court fees
Cost limits
Cost limitations on grants of civil legal aid: how the limit is calculated and what is covered
The importance of monitoring your case costs: considering sufficient expenditure
Case cost limits: payments from the Fund and judicial expenses cases
Applying for funding beyond the standard cost limit: factors to be addressed
Seeking a review of the case cost limit applied: procedure and information to provide
Applying for an increase beyond the standard cost limit: procedure and information to provide
Increases in long running cases or with multiple legally-aided parties: our monitoring role
Situations in which retrospective authority for a case cost increase may be granted
TOOL: standard cost limit of your case
After a grant, and prior approval needed
After a grant: extensions or amendments to grants of civil legal aid
Key points about approval
Applying for approval before, during and after a grant of legal aid
Employment of counsel
Employment of expert witnesses
Instructing a medical or health professional
Practical guidance to give to witnesses
Practical guidance to give to experts
Practical guidance to give to shorthand writers
Work of an unusual nature or likely to involve unusually large expenditure
After a grant: prior approval and the execution of diligence
Stage reporting
Changes of nominated solicitor
TOOL: funding for child welfare report
TOOL: sanction required if not acting as an expert?
TOOL: find a template sanction
TOOL: common types of work involving unusually large expenditure or unusual work
Changes of circumstances and withdrawal of legal aid
Duty to report change of circumstances
Duty to report abuse of civil legal aid
Our power to amend financial assessment: potential scenarios
Suspension of civil legal aid: relevant scenarios and impact
Termination of civil legal aid on change of circumstances
Regulation 31: termination of legal aid where conduct of your client is incompatible with continued grant
Termination of legal aid in cases of false or incomplete information
High cost and complex cases
Civil cases subject to special arrangements: criteria for identifying high cost and/or complex cases
Dedicated contact from us in high cost/complex cases
Our role in identifying and avoiding duplication of work across high cost/complex civil cases
Advice and Assistance Accounts
Table of fees
Introduction to civil A&A and ABWOR fees
Introduction to civil A&A accounts legislation
Basis on which we assess requests for payment of AA fees and outlays: the standard of taxation
Tables of fees available for civil advice and assistance
Cases where you are not due payment from the Fund: restrictions on what you can charge your client
Civil legal aid already in place
What information should you supply with your civil A&A account?
Payment under civil advice and assistance
Assessment of advice and assistance accounts: providing proportionate advice and potential abatements
Payment under advice and assistance
“First port of call” provisions: payment sources to look to before making a claim on the Fund
How to calculate and seek payment for A&A: the role of expenses/property recovered or preserved
Payment for A&A where claiming judicial expenses: no claims on Fund or your client
Diagnostic interview
Payment for diagnostic work where standard A&A later becomes available
Submission of diagnostic advice and assistance accounts: timebar after three months
Diagnostic advice and assistance: definition and expenditure limit
Who may give advice and assistance and ABWOR
Understanding what is properly chargeable in accounts: who can provide advice and assistance?
Advice and assistance accounts: delegation of work to unqualified person
AA/ABWOR accounts: what counts as ‘representation’
Advice and assistance accounts: can I undertake chargeable work if my practicing certificate has been restricted?
Can I delegate advice and assistance to an out of house professional?
Employment of and payment for counsel under A&A: prior authority required
Preparation and submission of an account
Preparing an A&A account: no charge payable
Submission of A&A accounts including diagnostics: date by which we must receive your account
Submission of accounts when both A&A and civil legal aid have been provided
When should an ABWOR account be submitted?
Sources of payment for A&A accounts: the hierarchy of payments and Fund as last port of call
Circumstances in which the higher limit for expenditure on A&A may be available
A&A accounts and increases in authorised expenditure
Information you should retain to vouch for your accounts
The account - fees
No work chargeable before advice and assistance is granted
Providing sufficient information for the assessment of account entries
Fees for the initial meeting and taking instructions from the client
Time chargeable for subsequent meetings with client
Fees payable for letters under advice and assistance
Circumstances in which you may charge for perusing correspondence under A&A
Rates allowable and information you should provide with the account entry for telephone calls
Fees payable for the taking of a precognitions in A&A cases
The rate payable for perusal of documents in A&A accounts
No fee payable for letters to us accompanying increase applications
The account - outlays
A&A accounts: test applied for whether outlays charged are allowable
A&A accounts and increases: authorised level of expenditure not automatically payable
A&A accounts and counsel’s fees: demonstrating work was reasonable, and procedure for payment
A&A accounts and mileage: the flat rate payable
Reimbursement of outlays: circumstances in which reimbursement is available
A&A outlays and payment for expert reports: requirement of prior approval
Outlays payable for experts located at a distance from court: information you should provide
Issues arising with different types of A&A
Requirement for increase to be granted and implications for property recovered or preserved for conveyancing work
Increases and cost-sharing between parties in family mediation
No fees payable for precognitions for Criminal Injuries Compensation Agency work
ABWOR
What is ABWOR and who may provide it?
Proceedings you need our prior approval to provide ABWOR in
ABWOR accounts and the employment of counsel: requirement of prior approval and charges for unauthorised advocacy
When are affidavit charges payable in ABWOR cases?
Block fees payable and charges subsumed under ABWOR in sequestration proceedings
ABWOR payments for hearings before tribunals
Factors to consider and payment implications when instructing local agents for your ABWOR accounts
Specific information and justification required for our assessment of fees for preparation work
Travel
A&A general rules for travel-related charges: client should travel to you, and methods of travel
A&A charges for consecutive days’ travel: is it cost effective?
When does travel become chargeable under A&A? Information you must be satisfied on
A&A travel costs: steps you should take to ensure costs will meet the statutory tests
Payment for travel outwith normal hours: what location will we pay you from?
Advice and Assistance accounts and travel: flat mileage rate payable and parking charges
Payment for travel and the appropriate apportionment of cost between clients: general policy
Travel costs for one destination: attending on multiple clients and when to round up time spent
Travel costs where multiple destinations: how to appropriately allocate costs where equal apportionment is not possible
Civil legal aid accounts
Table of fees
Introduction to civil reform fees
What types of cases are subject to civil reform fees?
Submission of account of expenses: when must your final account be submitted by?
Detailed fees: Court of Session proceedings, Children’s Proceedings, work listed in Schedule 7 and simple procedure cases chargeable under schedule 2A
Civil legal aid accounts: Court of Session cases
Civil legal aid accounts: Sheriff Appeal Court
Civil legal aid accounts: list of sheriff court cases or work items chargeable on a detailed basis
Payment for special urgency work in cases which do not proceed to civil legal aid
Civil legal aid accounts: Simple procedure cases
Block fees: sheriff court proceedings (no action raised or undefended)
Sheriff court block fees where no action raised: payment in formal and informal settlement scenarios
Civil legal aid: fees payable for undefended actions which become defended or vice-versa
Civil legal aid fees: fees payable for undefended actions in the sheriff court except those actions of divorce or separation and aliment
Civil legal aid fees: fees payable for undefended actions in the sheriff court for actions of divorce or separation and aliment
Block fees: sheriff court proceedings (defended)
Sheriff court cases chargeable on a block fee basis: defended action
Civil legal aid block fee accounts: instruction fees
Civil legal aid accounts: progress fees for work done before 10 February 2007
Civil legal aid accounts: Continued Options Hearing
Civil legal aid accounts: fees chargeable for motions and minutes
Civil legal aid accounts: list of miscellaneous fees
Civil legal aid accounts: summary of settlement provisions and when chargeable
Civil legal aid accounts: fees for preparation
Civil legal aid accounts: conduct & waiting
Civil legal aid accounts: activities covered by the conduct fee
Civil legal aid accounts: travel time
Additional fees and provision for exceptional cases in schedule 2A and schedule 6 cases
Civil legal aid accounts: availability of additional fees (‘percentage uplift’)
Civil legal aid accounts: factors we consider when assessing additional fee requests in block fee schedule 6 cases
Civil legal aid accounts: application for additional fee in Court of Session, Sheriff Appeal Court cases and summary cause proceedings
Civil legal aid accounts: Sheriff Appeal Court and Sheriff court – Procedure for applying for an additional Schedule 6 inclusive fee
Civil legal aid accounts: applying for an exceptional case application in accounts chargeable under schedule 2A or schedule 6
Interim payment procedure for fees and/or outlays
Civil legal aid accounts: availability of payments to account for fees
Civil legal aid accounts: availability of payments to account for outlays
Ruling on appearance of counsel without an agent
Dean of Faculty ruling on appearance of counsel without an agent: relaxation of previous rules and implications
Clawback and expenses
A&A - clawback and regulation 16(3)
Introduction to advice and assistance: property recovered and preserved provisions
Payment of A&A fees and outlays: the hierarchy of payments and where you should look to for payment
Our definition of property recovered or preserved (advice and assistance)
Property recovered or preserved where your client received both A&A and civil legal aid
Hardship applications: grave hardship or distress to client or undue difficulty or delay recovering the money – Reg. 16(3)
Client hardship applications: Regulation 16(3)(a)
Solicitor hardship applications: difficulty or delay in recovering from the applicant
Clawback and transfers of agency
Review of our refusal under regulation 16(3)(a) or (b)
Clawback: our right to recover sums paid out of the Fund from the applicant
Property recovered or preserved in civil legal aid
‘Clawback’ in civil legal aid: our right to recoupment from property recovered or preserved
Legal background and rationale for property recovered or preserved provisions in civil legal aid
Property recovered or preserved: calculating the net liability to the Fund
Defining ‘recovery and preservation of property’
Points in proceedings which may trigger a recovery or preservation of property
Recovery or preservation of property in matrimonial proceedings
Exemptions from clawback in civil legal aid
Concluding a case: information you should provide to help us assess whether property has been recovered or preserved
Clawback in civil legal aid: payment and enforcement of the net liability
Expenses
Expenses in favour of an assisted person
Expenses awarded against your client
Expenses of unassisted party out of the Legal Aid Fund
Awards of judicial expenses
Judicial expenses and private charging for work done before legal aid was granted
Interpreting and translating
Legal aid accounts: payment for interpreters
Payment for translation services
Pro-forma invoice for interpreter or translator fees
Interpreter attendance at police stations
Legal aid for contempt of court proceedings
Civil: General scope of legal aid in contempt of court proceedings
Who can provide legal aid for contempt of court in civil proceedings? Legal aid registration requirements
Availability of legal aid for contempt of court proceedings
Civil: Contempt proceedings at first instance: power of the court to assign you or counsel
Civil: Legal aid in contempt proceedings at first instance: applying to the court and eligibility criteria
Civil: Legal aid in contempt appeals: applications to us and tests applied
Civil: Contempt of court: refusals of legal aid
Civil: Sanction in contempt of court cases
Civil: Termination of legal aid in contempt cases: application of Regulation 8 and implications
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