Civil Legal Assistance Update
26 February 2013
To: All Civil Legal Aid Practitioners
Cost limitations on grants of civil legal aid
As part of the best value review of civil legal assistance expenditure we have been undertaking over the
past two years we have examined many high cost cases where grants of civil legal aid are in place. This
work has shown that the continuing availability of public funding for potentially expensive civil disputes
without any check on the overall costs that can be incurred, irrespective of the issues involved, is no
longer feasible.
In the case of NJDB –v- JEG and another, Lord Reed commented that the cost of the proceedings were
wholly disproportionate to the complexity of the issues which had to be resolved. He indicated it was a
cost that could only arise where the parties were publicly funded as it was inconceivable that any
reasonable person would expend resources on such a scale on a dispute over contact if the money were
coming out of his or her own pocket.
While cases incurring costs similar to NJDB are not typical we have seen other expensive actions where
significant sums of public money have been spent resolving disputes that on the face of it:
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should not have been as contentious as they were;
should not have needed as many days of court time as were used to bring matters to an end; and
would most probably not have lasted so long had the parties been paying their own expenses
privately.
To address the issue of potentially disproportionate levels of expenditure being incurred in cases we will
introduce cost limitations on all grants of civil legal aid. Additional expenditure will only be granted if
appropriate and proportionate to the issues involved in the dispute. This will apply to applications for civil
legal aid made on or after 21 March 2013. We have already discussed the introduction of cost limitations
with the Law Society of Scotland, the Family Law Association, the Association of Personal Injury Lawyers
and the Scottish Law Agents Society. It has also been raised as an issue with the Faculty of Advocates.
We will use our condition making power in terms of section 14(1F) of the Legal Aid (Scotland) Act 1986 for
this. In terms of this section it is open to us to make civil legal aid available to a person subject to such
conditions as the Board considers expedient and such conditions may be imposed at any time. The
imposition of conditions is not restricted to conditions concerning the nature of the proceedings to be
undertaken.
The Scottish Legal Aid Board
Setting the Limits
The limits will vary depending on the type of case involved. In setting the limits of expenditure for each
category of case we have used information held about paid accounts. We used payment data covering a
two year period as this longer time frame improved the accuracy of the figures used to set the limits. This
gave us the best opportunity to place limits at figures that are sufficiently high to avoid unnecessary
administration in seeking uplifts in the limits but which, crucially, still give sufficient control to protect
the Fund from the more expensive cases.
The limits are not based on average case costs as the average can be affected disproportionately by both
high and low cost cases in the total population. We know we have too many accounts that cost above the
average to make using this as a base figure workable for either you or us. Because of this we focussed on
numbers and values of cases by percentile. The cost limit for each category has been set around the
80/90% percentile of costs for that case category including counsel and expert fees and other outlays – in
other words set at a limit within which 80 to 90% of applications currently fall in terms of accounts paid.
The cost limit applies to all the costs of the case: solicitors’ fees, counsel’s fees and outlays.
The cost limits by category are given in the table. Some of the cost limit categories encompass a number
of individual application categories. Details of the types of court orders sought under each category
covered under each limit are also provided at Table 2. The limits are exclusive of VAT for solicitors and
counsel.
TABLE 1: LIMITS BY COURT CASE CATEGORY
United Kingdom Supreme Court
Proposed cost limit (Exclusive of VAT)
£k
£60k
Court of Session
Reparation
Judicial Review/Immigration
Judicial Review/Other
Medical negligence
Family cases
Interdict
Appeals
Other
£25k
£3k
£7k
£35k
£20k
£5k
£20k
£10k
Sheriff Court
AISA
Recovery HP
Interdict NM
Interdict other
Debt Payment
Mortgage rights
Reparation other
Debt other
Appeals gen
ASBO
FAI’s
Sexual Offences – Prevention Orders
Other civil
Variation
Adoption
Declarator
Family Law Act
Medical Negligence
£1.5K
£1k
£2k
£2k
£2k
£1k
£4k
£1k
£2k
£1k
£20k
£1k
£3k
£6k
£10k
£4k
£4.5k
£10k
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Lands Tribunal
£4k
TABLE 2: COURT ORDERS COVERED UNDER EACH CATEGORY
SHERIFF COURT
Contact
Divorce
RESIDENCE
CAPITAL SUM/FINANCIAL CLAIMS
VARIATION
ADOPTION
DECLARATORS
OTHER FAMILY LAW
FAILURE TO OBTEMPER
Depravation of Parental Rights and Responsibility
Exclusion Order
Contact
Parental Rights and Responsibilities Order
Dissolution of Civil Partnership
Divorce 1 Year
Divorce on the grounds of Adultery
Divorce on the grounds of 2 Years Separation
Divorce on the grounds of Unreasonable Behaviour
Divorce on the grounds of interim gender
Residence
Aliment
Capital Sum
Counter-claim Aliment
Counter-claim Capital Sum
Delivery
Division of Sale
Interim Aliment
Orders under Matrimonial Homes (Scotland) Act
Pension Splitting Order
Periodical Allowance
Reciprocal Enforcement
Transfer of Property – Matrimonial Home
Transfer of Property – Other
Transfer of Tenancy
All Minutes to Vary in Family action
Adoption
Permanence Orders
Declarator of Non Parentage
Declarator of Nullity (Marriage)
Declarator of Parentage
Declarator of Paternity
Declarator of Marriage
Orders under Family Law (Scotland) Act
Setting aside Minutes of Agreement
Specific Issue Order
Minute to Ordain Defender
Failure to Obtemper
SHERIFF COURT – NON FAMILY
AISA
RHP
INTERDICT – NON MOLESTATION
OTHER INTERDICT
AISA – Welfare
AISA – Finance
RHP – rent arrears
RHP – other
Non Harassment Order
Non Harassment Order Family
Power of Arrest
Protection from Abuse (Scotland) Act
Interdict Non-Molestation
Breach of Interdict
Breach of Interdict – Family
Interdict
Interdict against Disposal of Assets
Interdict against removal of child/Other
Interdict against removal of furnishers and plenishings
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Interdict – Family Other
Interdict – Other Non Family
DEBT/REPAYMENTS
MORTGAGE RIGHTS
REPARATION
OTHER DEBT
APPEALS
ASBO
OTHER CIVIL
Reparation – Other/Damages
Reparation – Personal Injury
Reparation – Professional Negligence
Delivery of Goods
Sequestration
Forthcoming
Multiple Poinding
Civic Government (Scotland) Act
Appeals to Sheriff Principal
Specific Implement
Defamation
Sexual Offences
Reduction
Unjustified Enrichment
COURT OF SESSION
REPARATION
JUDICIAL REVIEW
CONVENTIONS
APPEALS
Reparation – Other/Damages
Reparation – Personal Injury
Reparation- Professional Negligence
Judicial Review against Scottish Ministers
Judicial Review against the Scottish Legal Aid Board
Immigration Proceedings
Housing Issues
Hague Convention
All other convention matters
Inner House
Employment Appeal Tribunal
MONITORING OF COSTS
The implementation of cost limitations will have the benefit of drawing to our attention any case where
higher than normal levels of expenditure are being incurred. We know from paid accounts that 90% of
applications have modest costs with their cumulative value accounting for around 40% to 60% of the total
costs incurred in any one case category. The most expensive cases, which are in the 90 to 100 percentile
range, account for around 40% to 60% of the total costs for each category. This is a significant share of the
total costs incurred and as such, it is these cases that will need greater scrutiny and potentially ongoing
monitoring.
Where appropriate, we can monitor the progress being made in the case and allow the levels of additional
funding considered appropriate but proportionate to the issues involved in the dispute. Where there is
more than one legally aided party involved in an action and a request is made for an increase in the
funding available, even if it is for one party only, we will consider all grants of legal aid at the same time
to determine whether it is appropriate to continue to provide funding to resolve the dispute and if so, to
what level.
Legal Aid Applications
When you apply for civil legal aid after 21 March you will see that the application screens have been
changed to include questions about cost limitations. The main changes concern applications seeking:
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civil legal aid,
reviews of refusals, and
amendments to the scope of a grant.
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Initial Applications
It will be open to you to ask for a higher than usual level of expenditure for any particular category of case
when you lodge the application for civil legal aid. This should only be done where you are aware at the
outset of factors likely to increase the cost of the case beyond the limit. You will need to identify these
factors in the initial application. This may include matters such as:
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details of type and number of experts likely to be instructed together with their costs;
information showing there may be a need to instruct counsel;
whether your client has any special needs that require additional assistance or expenditure
including the use of interpreters
Review Applications
If you ask for a higher level of expenditure than the standard cost limitation when you apply for legal aid
and this is refused it is open to you to seek a review of the condition imposed on the grant of civil legal aid
in relation to the available expenditure as section 14(1F) allows for a review to be sought of any condition
imposed. Review applications should be made in the usual manner.
Amend Applications
The standard cost limit will provide sufficient expenditure for the majority of cases and there will be no
requirement to seek further funding. Where however the cost limit set on the grant of civil legal aid is not
sufficient you will need to apply for an increase in funding. This should be done using the amend
application. There is no limit to the number of amend applications that may be made seeking an uplift. It
may be that the costs of a case keep increasing and so more than one request for additional funding will
be needed. If we are given good reasons for the increase in funding and the costs remain proportionate
we may grant the request. You will need to provide details setting out why the case cannot be concluded
within the available expenditure. This could include information about costs incurred on:
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counsel and expert fees;
other significant outlays;
whether your client has any special needs that require additional assistance or expenditure
including the use of interpreters
Seeking Retrospective Authority
Where you have not obtained prior approval to exceed the existing limits of expenditure it is possible for a
request to be made for retrospective authority. This will be allowed where good reasons are given
explaining why there was a failure to obtain such prior approval. Examples might be where additional
court days were allocated for a case and there was no time to revert to us asking for authority to exceed
the limit in advance of the court hearing or where a party to an action has been ordered to meet the
expenses of a particular outlay (the most obvious example being costs incurred by a reporter) and the
liability for this cost was not known in advance of the work being undertaken or ordered.
Keeping a Track of Costs
We know that the introduction of cost limitations on grants of civil legal aid will mean you have to be
aware of costs being incurred as the case progresses including your own fees. You need to be sure you
have sufficient expenditure in place for the work you need to undertake. If you require to seek sanction
for counsel, experts or to incur unusually large expenditure or undertake work of an unusual nature you
should consider at that time whether you have sufficient expenditure available to you to instruct any
approved work without seeking an increase in funding.
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Where we know that certain costs have already been approved or incurred bringing you close to the limit
of available expenditure such as where experts are authorised we will give a warning message if further
sanction is sought. We will tell you to submit an amend application before you proceed further. However,
as we do not currently ask for details of costs to be incurred in instructing counsel you will need to ensure
that you have sufficient funding to cover such costs should the instruction of counsel be required and
approved by the Board.
Guidance will be included in the Civil Legal Assistance Handbook in relation to the changes brought about
by the introduction of cost limitations on grants of civil legal aid.
Further information
If you would like further information about cost limitations, please contact:
Catriona Whyte, Head of Legal Services – Civil, [email protected], 0131 240 2088.
Scottish Legal Aid Board, 44 Drumsheugh Gardens, Edinburgh, EH3 7SW
Tel: 0131 226 7061
www.slab.org.uk
The Scottish Legal Aid Board
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