CIVIL LEGAL ASSISTANCE UPDATE

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1 CIVIL LEGAL ASSISTANCE UPDATE To: All Civil Legal Aid Practitioners 27 February 2013 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: 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 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

2 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 Proposed cost limit (Exclusive of VAT) k United Kingdom Supreme Court 60k Court of Session Reparation 25k Judicial Review/Immigration 3k Judicial Review/Other 7k Medical negligence 35k Family cases 20k Interdict 5k Appeals 20k Other 10k Sheriff Court Contact 6k Divorce/Separation 6k Residence 6k Capital Sum/Financial 6k Failure to Obtemper 1.5k AISA 1.5K Recovery HP 1k Interdict NM 2k Interdict other 2k Debt Payment 2k Mortgage rights 1k Reparation other 4k Debt other 1k Appeals gen 2k ASBO 1k FAI s 20k Sexual Offences Prevention Orders 1k Variation 6k The Scottish Legal Aid Board 2

3 Adoption 10k Declarator 4k Family Law Act 4.5k Medical Negligence 10k Other civil 3k 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 AISA Welfare AISA Finance RHP rent arrears RHP other Non Harassment Order Non Harassment Order Family Power of Arrest The Scottish Legal Aid Board 3

4 OTHER INTERDICT DEBT/REPAYMENTS MORTGAGE RIGHTS REPARATION OTHER DEBT APPEALS ASBO OTHER CIVIL 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 Interdict Family Other Interdict Other Non Family 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. The Scottish Legal Aid Board 4

5 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: civil legal aid, reviews of refusals, and amendments to the scope of a grant. 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: 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: 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. The Scottish Legal Aid Board 5

6 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. 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 at or Scottish Legal Aid Board, 44 Drumsheugh Gardens, Edinburgh, EH3 7SW Tel: The Scottish Legal Aid Board 6

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