Protocol between the Scottish Legal Aid Board
and the Principal Reporter on the Identification of
Potentially High Cost Proceedings
Appendix 3 – Protocol with SCRA
May 2009
1.
Introduction
1.1
The Scottish Legal Aid Board (SLAB) has established a High Cost Cases Project. The
purpose of the Project is to develop an approach to the identification and management of
potentially high cost legal aid cases which ensures that the legal aid expenditure represents
best value and that costs are kept to a minimum where possible. Cases related to children’s
hearings proceedings (children’s cases) are included in this. The Scottish Children’s Reporter
Administration (SCRA) and the Principal Reporter have a role in assisting SLAB in its
management of such cases in so far as such assistance is compatible with the Principal
Reporter’s statutory powers and duties.
1.2
This protocol between SCRA and SLAB concerns procedural progress and management of
children’s cases only and no discussions can take place regarding the merits and/or personal
facts and circumstances of any identified potentially high cost children’s case (see paragraph
3.2 ).
1.3
SLAB has identified their own internal triggers for identifying potentially high cost children’s
cases. These are:
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1.4.
Sanction granted for counsel to conduct all or part of the proceedings.
Sanction granted for a non-UK expert.
Sanction granted for an expert whose costs are likely to exceed £5,000.
Sanction granted for three or more experts.
However, it is recognised that other agencies or individuals may be aware of factors in a case
which would make it potentially high cost. SLAB has therefore identified external triggers as:
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Information received from the Principal Reporter.
Information received from a solicitor or safeguarder acting for a child or relevant person.
Information received from the Scottish Courts Service.
1.5
This Protocol sets out the information which children’s reporters are to provide to SLAB in
certain circumstances.
2.
The information to be provided to SLAB when the reporter identifies a
potentially high cost case
2.1
Where a child’s case has one or more of the following features, the reporter will identify it as a
potentially high cost case:
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the case has been set down for, or proceeds to, more than 5 days of evidence
the reporter has instructed a solicitor or counsel in the proceedings
the reporter has instructed an independent opinion expert
the sheriff has instructed the proceedings to be recorded
2.2
On identifying a potentially high cost case, where SLAB has not already been in contact about
the case, the reporter will contact SLAB to alert SLAB to the case. The reporter will provide
the following information:
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which of the above features apply to the case
the nature of the case (eg proof, appeal)
the court at which the case is being heard
any court dates which have been set down
the number of children involved.
2.3
The reporter will not provide information which would identify any child or relevant person
involved in the proceedings, as at this point it is not known whether an application to SLAB
has, or ever will be, made in relation to the case.
3.
The information to be provided when SLAB has identified a potential high cost
case
3.1
Where SLAB has identified a children’s case as being a potentially high cost case, either
through internal triggers or through information received from an external source including the
children’s reporter, SLAB may contact the children’s reporter at the outset and/or during the
course of the proceedings to seek further procedural information about the case.
3.2
On such a request, the reporter will provide the following information:
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the nature of the proceedings (e.g. application for proof, appeal against the decision of a
children’s hearing)
any court dates which have been set down and their purpose (e.g. hearing evidence,
preliminary debate)
any adjournments sought or agreed and reasons for such.
any instruction by the reporter of a solicitor or counsel, and if so whether the appointment
is for business reasons or because of some complexity in the case and whether the
instruction is for a limited purpose only (e.g. a devolution minute within proof or appeal
proceedings) or for the entirety of the proceedings
any instruction by the reporter of an independent opinion expert
any decision by the sheriff that the proceedings are to be recorded
any other information relating to the procedural progress and management of the case
3.3
The reporter will not provide information or opinion regarding the personal merits, facts and
circumstances of the case itself.
4.
Process and Contacts
4.1
Where SLAB has identified a case as a potentially high cost case other than through
information provided by the reporter, SLAB will write to the relevant solicitor and will provide a
copy of the letter to the appropriate Authority Reporter.
4.2
Where SLAB wishes to contact the reporter about a case which SLAB has identified as a
potentially high cost case, SLAB will contact the relevant Authority Reporter in relation to
proceedings before the sheriff and the Practice Manager at SCRA HQ in relation to
proceedings before the Sheriff Principal or Court of Session.
4.3
In relation to proceedings before the sheriff, the case reporter is responsible for identifying
whether it is a potentially high cost case in terms of paragraph 2 and informing his Authority
Reporter. The Authority Reporter will contact SLAB. In relation to proceedings before the
Sheriff Principal or Court of Session the relevant Practice Reporter will identify whether it is a
potentially high cost case and inform SLAB.
4.4
A list of contact details for SCRA and SLAB staff is attached at Appendix A.
4.5
Where there is any difficulty in the operation of this Protocol which cannot be resolved locally,
reporters will bring it to the attention of the Head of Practice in SCRA. The Head of Practice
and SLAB will keep the Protocol and its operation under regular review.
Form 1
Name of child – for reporter copy only
Protocol between the Scottish Legal Aid Board and the Principal Reporter
on the Identification of Potentially High Cost Proceedings
Information to be provided to SLAB when a reporter identifies a potentially high cost case.
1. Features
Mark whichever apply
Case set down for, or proceeds to, more than 5 days of evidence
Solicitor/counsel instructed by reporter
Independent opinion expert instructed by reporter
Sheriff has instructed recording of proceedings
2. Nature of the case (e.g. proof, appeal against decision of children’s hearing)
3. Name of Court
4. Court dates
5. Number of children
The reporter will not provide information which would identify any child or
relevant person involved in the proceedings
Form 2
Name of child – for reporter copy only
Protocol between the Scottish Legal Aid Board and the Principal Reporter
on the Identification of Potentially High Cost Proceedings
Legal Aid applicant/recipient
Legal Aid Reference Number
Information to be provided to SLAB by the reporter when SLAB has identified a potentially
high cost case.
1. Nature of the case (e.g. proof, appeal against decision of a children’s hearing)
2. Court dates and their purpose
3. Adjournments sought or agreed, and reasons
4. Has the reporter instructed solicitor or counsel
Yes
Mark whichever apply
No
5. Reason for instruction at 4.
Mark whichever apply
Business
Complexity
Sheriff Principal/Court of Session
6. Duration of instruction
Mark whichever apply
Entirety
For devolution minute
For preliminary debate
Other (specify)
7. Are proceedings to be/being recorded
Yes
Mark whichever apply
No
8. Any other information re procedural progress and management of the case