Defamation or Verbal Injury Direction 2010

The Scottish Ministers give the Scottish Legal Aid Board the following Direction in exercise of the powers conferred by section 14(1C) and (1D) of the Legal Aid (Scotland) Act 1986(a).

Citation, commencement and interpretation

  1. This Direction may be cited as the Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2010 and comes into force on 28th October 2010.
  2. In this Direction “the Board” means the Scottish Legal Aid Board.

Availability of civil legal aid in defamation or verbal injury proceedings

  1. Civil legal aid is only to be made available to an applicant in proceedings which are wholly or partly concerned with defamation or verbal injury if, in addition to the Board being satisfied that the requirements in section 14(1) and 15 of the Legal Aid (Scotland) Act 1986 are met, any of paragraphs 4 to 6 of this Direction apply.

Wider public interest

  1. This paragraph applies if the Board is satisfied that the proceedings have the potential to produce real benefits for individuals other than the applicant (other than the benefits to the public at large which normally flow from proceedings of the type in question).

Effective participation

  1.       (1) This paragraph applies if the Board is satisfied that without public funding for representation the applicant would be unable to bring or defend the proceedings effectively.

(2) In considering an applicant’s ability to bring or defend the proceedings effectively without public funding for representation, the Board is to take into account the applicant’s ability (with the assistance of any accompanying person)—

(a)   to consider and challenge any document or information before the court; and

(b)   to present his or her views and arguments to the court in an effective manner.

(3) The Board shall be satisfied that the applicant would be unable to bring or defend the proceedings effectively without public funding for representation if it considers the case to be exceptional.

(4) A case is “exceptional” for the purpose of sub-paragraph (3) if the degree of exceptionality is the same as, or is approximately the same as, in the facts found in those cases in which the Court of Session, the Supreme Court or the European Court of Human Rights has indicated that the absence of public funding for representation violates one or more of the Convention Rights (as defined in the Human Rights Act 1998(b)).

Availability of civil legal aid in cross border disputes

  1. This paragraph applies if the proceedings concern a cross border dispute and Article 3(3) or 6(3) of Council Directive 2003/8/EC of 27 January 2003(a) requires that legal aid be made available.

Revocation

  1. The Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2008 is revoked.

 

Deputy Director

Justice Directorate

St Andrew’s House,

Edinburgh

26th October 2010