The Civil Legal Aid (Scotland) Regulations 2002

Made: 6th November 2002

Laid before the Scottish Parliament: 7th November 2002

Coming into force: 1st December 2002

The Scottish Ministers, in exercise of the powers conferred by sections 17(2B), 19(4), 20(4), 36(1), (2)(a) and (c) to (h), (3)(bb), (e) and (f) and (4), 37(1) and (3) and 42 of the Legal Aid (Scotland) Act 1986 and of all other powers enabling them in that behalf, hereby make the following Regulations:

PART 1 — GENERAL

Citation and commencement

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These Regulations may be cited as the Civil Legal Aid (Scotland) Regulations 2002 and shall come into force on 1st December 2002.

Interpretation

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• (1) In these Regulations–

• “the Act” means the Legal Aid (Scotland) Act 1986;

• “the 1992 Act” means the Social Security Contributions and Benefits Act 1992[^f00002];

• “the 1995 Act” means the Children (Scotland) Act 1995[^f00003];

• “assisted person” means a person in receipt of legal aid in the proceedings in question;

• “child” means a person under the age of 16 years;

• “counsel” includes a solicitor-advocate, except in regulations 21(1)(c) and 44 below;

• “Employment Appeal Tribunal” means the Employment Appeal Tribunal established under section 87 of the Employment Protection Act 1975[^f00004];

• “Fund” means the Scottish Legal Aid Fund;

• “income” includes benefits and privileges, and the income of the person concerned includes any sum payable for the purpose of the maintenance of a child including any sum payable to that person under the order of a court or under any agreement for that purpose;

• “interest in land” has the same meaning as in section 28(1) of the Land Registration (Scotland) Act 1979[^f00005];

• “junior counsel” includes a junior solicitor-advocate;

• “legal aid” means “civil legal aid” within the meaning of section 13(2) of the Act[^f00006];

• “legal representative” means a person having parental responsibilities in relation to a child, a judicial factor or a person authorised to act on an adult’s behalf under the Adults with Incapacity (Scotland) Act 2000[^f00007];

• “maximum contribution” means the maximum amount of a person’s contribution to the Fund in respect of any proceedings;

• “opponent”, in relation to an application for legal aid, means a party, other than the applicant, interested in the proceedings for which legal aid is sought;

• “parental responsibilities” has the meaning given in section 1(3) of the 1995 Act;

• “parental rights” has the meaning given in section 2(4) of the 1995 Act;

• “period of computation” means the period of 12 months next ensuing from the date of the application for legal aid, or such other period of 12 months as in the particular circumstances of any case the Board may consider to be appropriate;

• “person concerned” means the person whose disposable income, disposable capital, and maximum contribution are to be determined or redetermined or the person whose resources are to be treated as the resources of any other person, under these Regulations;

• “right of audience” means, in relation to a solicitor, a right of audience in the Court of Session, the House of Lords and the Judicial Committee of the Privy Council which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980[^f00008];

• “senior counsel” includes a senior solicitor-advocate, except in paragraph (2) below;

• “solicitor-advocate” means a solicitor, whether instructed by another solicitor or not, when and only when exercising that solicitor’s right of audience or acting in connection with the exercise of such a right and “junior solicitor-advocate” and “senior solicitor-advocate” shall be construed in accordance with paragraph (2) below;

• “in writing” includes a reference to an electronic communication, as defined in the Electronic Communications Act 2000[^f00009], which has been recorded and is consequently capable of being reproduced; and

unless the context otherwise requires, any reference in these Regulations to a solicitor does not include a solicitor when acting as a solicitor-advocate.

• (2) For the purposes of these Regulations, a solicitor-advocate shall be–

• (a) a senior solicitor-advocate, where undertaking work equivalent to that which would be done by a senior counsel in a case in the House of Lords or the Judicial Committee of the Privy Council, or where the Board has authorised the employment of senior counsel under regulation 21(1)(b) or (2) below; or

• (b) a junior solicitor-advocate, where undertaking work equivalent to that which would be done by a junior counsel, irrespective of whether or not the Board has authorised the employment of senior counsel in the case.

Revocations and savings

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• (1) Subject to paragraphs (2) and (3) below, the Regulations specified in Schedule 1 to these Regulations are hereby revoked.

• (2) The revocation by these Regulations of–

• (a) a transitional provision relating to the coming into force of, or

• (b) an application provision which restricts the application of,

a provision, which is revoked and re-enacted by these Regulations, does not affect the operation of that transitional provision or, as the case may be, application provision, insofar as it remains capable of having effect in relation to the provision which is re-enacted in these Regulations.

• (3) Where a period of time specified in any provision, which is revoked by these Regulations, is current at the date of coming into force of these Regulations, these Regulations have effect as if the provision which re-enacts that revoked provision in these Regulations had been in force when that period began to run.

Distinct proceedings for purposes of legal aid

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• (1) For the purposes of legal aid the following proceedings shall, subject to paragraph (2) below, be treated as distinct proceedings:–

• (a) proceedings in the sheriff court insofar as they are proceedings in a court of first instance;

• (b) proceedings before the Sheriff Appeal Court on appeal from the sheriff;

• (c) proceedings in the Court of Session, whether in the Inner House or before a Lord Ordinary, insofar as they are proceedings in a court of first instance;

• (d) proceedings in the Court of Session, insofar as they are proceedings in an appellate court;

• (e) proceedings in the Supreme Court—

• (i) on appeal from the Court of Session; or

• (ii) by way of application for permission to appeal in terms of paragraph 13 of Schedule 6 to the Scotland Act 1998;

• (f) proceedings in the Lands Valuation Appeal Court;

• (g) proceedings in the Scottish Land Court;

• (h) proceedings before the Lands Tribunal for Scotland;

• (i) proceedings before the Employment Appeal Tribunal;

• (j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (k) proceedings before the Social Security Commissioners ...;

• (l) proceedings before the Proscribed Organisations Appeals Commission;

• (m) proceedings on appeal to the Upper Tribunal for Scotland;

• (n) proceedings before the First-tier Tribunal for Scotland.

• (2) Where proceedings are—

• (a) initiated in the sheriff court and remitted to the Court of Session;

• (b) initiated in the Court of Session and remitted to the sheriff court;

• (c) initiated in the sheriff court and remitted to the Scottish Land Court; or

• (d) initiated in the Sheriff Appeal Court and remitted to the Court of Session,

the proceedings in the court to which the case is remitted are not to be treated as distinct from the proceedings in the initial court.

• (3) Where in any of the distinct proceedings specified in paragraph (1) above, any decree or order has been granted in favour of the assisted person, those proceedings shall be treated as including any step, other than the taking of proceedings for civil imprisonment or for sequestration or the raising of an action of furthcoming following arrestment, in the execution of diligence following such decree or order.

PART II — APPLICATIONS FOR LEGAL AID

Form of application

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• (1) Subject to regulations 6 and 18 below, an application for legal aid under section 14 of the Act shall be–

• (a) in such form as the Board may require, which may include an online form;

• (b) accompanied by a statement as to the nature of the case and the interest of the applicant therein;

• (c) accompanied, so far as possible, by such precognitions and other documents as may be requisite to enable the Board to determine the application; and

• (d) accompanied by a copy for each opponent of the statement referred to in sub-paragraph (b) above together with such form of intimation as the Board may require in relation to each opponent and either the address of each opponent or each opponent’s solicitor or a statement that the whereabouts of the opponent are unknown following reasonable enquiry.

• (2) Where the applicant resides outside the United Kingdom and is not able to be present in the United Kingdom when the application is being considered, the application, which shall be in English or in French, shall, subject to paragraph (3) below, be sworn–

• (a) if the applicant resides within the Commonwealth or the Republic of Ireland, before any Justice of the Peace or Magistrate, or any person for the time being authorised by law, in the place where the applicant is, to administer an oath for any judicial or other legal purpose, or

• (b) if the applicant resides elsewhere, before a consular officer in the service of Her Majesty’s Government in the United Kingdom, or any other person for the time being authorised to exercise the functions of such an officer or having authority to administer an oath in that place for any judicial or other legal purpose,

and shall be accompanied by a statement ..., itemising the applicant’s disposable income and disposable capital.

• (3) The requirements of paragraph (2) above may be waived in whole or in part by the Board where it is satisfied that compliance with them would cause serious difficulty, inconvenience or delay and the application satisfies the requirements of paragraph (1) above.

Applications on behalf of children

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• (1) Without prejudice to any right of a child to apply under regulation 5 above, application on behalf of a child may be made by the child’s legal representative or by any person in whose care the child is, or by a person acting for the purposes of any proceedings as the child’s tutor or curator.

• (2) An application by or on behalf of a child under the upper age limit of compulsory school age in terms of paragraph (1) above shall be determined in terms of Part III below.

Notification to opponent

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• (1) Subject to paragraph (2) below, it shall be the duty of the Board to send to any opponent, or to the solicitor acting for any opponent–

• (a) notification that application for legal aid has been made;

• (b) a copy of the statement referred to in regulation 5(1)(b) above; and

• (c) notice of the opponent’s right, under regulation 8 below, to make representations to the Board.

• (2) Paragraph (1) above shall not apply if–

• (a) the addresses of the opponent and the opponent’s solicitor are not known to the Board and could not reasonably be ascertained by the solicitor acting for the applicant; or

• (b) the Board, on the application of the solicitor acting for the applicant, determines that notification should be dispensed with or postponed.

Right of opponent to make representations

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Any opponent may, within 14 days (or, in the case of an opponent resident outside the United Kingdom, 28 days) of being notified of the application, or such longer time as the Board may in the particular circumstances allow, make to the Board representations in writing as to the application, and the Board shall, except where it makes legal aid available under regulation 18 below, consider any such representations before determining the application.

Attendance for interview and supply of information

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• (1) An applicant for legal aid shall, if required by the Board to do so, attend for interview by a representative of the Board or supply such information or further information or documents as the Board may require to enable it to determine the application or to make determination as to the amount of contribution to the Fund.

• (2) Where an applicant for legal aid fails to comply with a requirement under paragraph (1) above;

• (a) the Board may treat the application as having been abandoned, and where it does so it shall give intimation of the abandonment to the applicant and any opponent; and

• (b) the Board shall have the right to recover from the applicant the amount paid out of the Fund in respect of the fees and outlays of the applicant’s solicitors and counsel, less any amount received from that person by way of contribution.

PART III — ASSESSMENT OF RESOURCES

Determination of disposable income and disposable capital

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Save as otherwise provided by these Regulations, the disposable income and disposable capital of a person shall respectively be determined at amounts calculated in accordance with the rules set out in Schedules 2 and 3 to these Regulations.

Circumstances in which resources of spouse not to be taken into account and resources of cohabitees

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• (1) The resources of a person’s spouse shall not be treated as his or her resources if–

• (a) the spouse has a contrary interest in the dispute in respect of which application for legal aid is made; or

• (b) the Board is satisfied that the person and the spouse are living separate and apart.

• (2) For the purposes of section 42 of the Act, two persons living together as husband and wife or in a relationship which has the characteristics of the relationship between husband and wife except that the persons are of the same sex shall be treated as if they were spouses of each other.

Deprivation or conversion of resources

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• (1) If it appears to the Board that a person has, with intent to reduce that person’s disposable income or disposable capital, whether for the purpose of making that person eligible for civil legal aid, reducing that person’s liability to pay a contribution towards civil legal aid or otherwise–

• (a) directly or indirectly deprived that person of any resources; or

• (b) converted any part of that person’s resources into resources which under these Regulations are to be wholly or partly disregarded or in respect of which nothing is to be included in determining the resources of that person,

the resources of which that person has so deprived himself or herself or which he or she has so converted shall be treated as part of that person’s resources or as not so converted, as the case may be.

• (2) Where it appears to the Board that an assisted person has acted in the way described in paragraph (1) above it may make an amended determination in accordance with regulation 28.

Assessment of disposable income, etc. in relation to appellate proceedings

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• (1) Subject to paragraph (2) below, where an application relates to any of the proceedings specified in regulation 4(1)(b), (d), (e) or (j) above, and the applicant was previously an assisted person in relation to that action, cause or matter, the Board shall not redetermine the applicant’s disposable income and disposable capital but shall assess the amount of the maximum contribution, if any, payable in respect of the proceedings at an amount not greater than the maximum contribution assessed in relation to the earlier proceedings, less any amount assessed by the Board to be paid in respect of those proceedings.

• (2) If since the last occasion on which the disposable income and disposable capital of the person concerned was determined in relation to that action, cause or matter, that person’s circumstances have altered otherwise than as a result of the payment of a contribution in respect of the earlier proceedings, the Board may redetermine that person’s disposable income and disposable capital in accordance with the law applicable at the time of the original determination and shall take into account–

• (a) any increase in the amount of that person’s disposable income by an amount greater than £750;

• (b) any decrease in the amount of that person’s disposable income by an amount greater than £300; and

• (c) any increase in the amount of that person’s disposable capital by an amount greater than £750.

Assessment of resources, etc. of person making application in representative, fiduciary, official or other capacity

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• (1) Where the applicant is a person who is concerned in the proceedings only in a representative, fiduciary or official capacity or is a named person by virtue of any of sections 250 to 254 and 257 of the Mental Health (Care and Treatment) (Scotland) Act 2003, then for the purpose of determining that person’s disposable income and disposable capital, and the amount of any contribution required under section 17 of the Act, the personal resources of the applicant shall be disregarded, but regard shall be had to the value of any property or the amount of any fund out of which the applicant is entitled to be indemnified and to the disposable income and disposable capital of any persons (including the applicant if appropriate) who might benefit from the outcome of the proceedings.

• (2) Where a person applies for legal aid in connection with any proceedings in which that person is concerned in a representative, fiduciary or official capacity or is a named person by virtue of any of sections 250 to 254 and 257 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and it appears to the Board that the applicant is entitled, whether by an order of the court or otherwise, to be indemnified in respect of his or her expenses in connection with the proceedings out of a fund or by a third party, it shall not grant legal aid unless it is satisfied that the fund cannot reasonably be expected to bear the expense of the proceedings or, as the case may be, that the third party would, if a party to the proceedings, be entitled to legal aid.