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Last update: 04-04-2006
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Legal aid - Scotland

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TABLE OF CONTENTS

1. What are the costs of a trial and who should normally pay them? 1.
2. What is legal aid? 2.
3. Can I benefit from legal aid? 3.
4. Can legal aid be obtained for all disputes? 4.
5. Is there a specific procedure for emergencies? 5.
6. Where can I obtain an application form for legal aid? 6.
7. Which documents should I attach to my request for legal aid? 7.
8. Where should I register my request for legal aid? 8.
9. How will I be informed of whether or not I am eligible for legal aid? 9.
10. If I qualify for legal aid, what should I do? 10.
11. If I qualify for legal aid, who will choose my lawyer? 11.
12. If I qualify for legal aid, will this cover all the costs of my trial? 12.
13. If I qualify for legal aid, will it cover any review I might make following the trial? 13.
14. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)? 14.
15. If I do not qualify for legal aid, can I appeal against this decision? 15.

 

1. What are the costs of a trial and who should normally pay them?

The costs will depend upon the nature of the case. Costs can include the fees of the solicitor who is acting for the person in receipt of legal aid (the assisted person), together with outlays such as court fees and expert opinions.

At the end of a case, the court will decide which party should pay the costs. In general, the successful party is ordered to pay the unsuccessful party’s costs although there are many exceptions to this principle. If the assisted person is unsuccessful or if the other party is ordered to pay the costs but fails to do so the assisted person will be liable to pay his own costs.

2. What is legal aid?

The legal aid scheme in Scotland is administered by the Scottish Legal Aid Board (the Board), which is a Non-Departmental Public Body funded by The Scottish Executive.

There are three types of legal assistance.

  • Civil advice and assistance: Oral or written advice on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking advice. It is provided by a solicitor and, where appropriate, by counsel,
  • Advice by way of representation (ABWOR): A category of advice and assistance that allows for representation by a solicitor or, where appropriate, by counsel in civil proceedings in designated courts and tribunals in Scotland
  • Civil legal aid: A separate scheme that allows for representation by a solicitor or, where appropriate, by counsel in civil proceedings in other designated courts and tribunals in Scotland

3. Can I benefit from legal aid?

Advice and assistance and legal aid is only available to individuals; it is not available to corporate or unincorporated bodies. However, advice and assistance or legal aid can be made available to individuals in connection with business or commercial matters in certain circumstances; for example, self employed sole traders.

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There are no conditions regarding the residence or nationality of an applicant for legal aid.

Advice and assistance can be granted by a solicitor if he is satisfied that the applicant is financially eligible and the subject on which he seeks advice is a matter of Scots law. A solicitor can provide advice and assistance up to a certain level of expenditure. Any work which will exceed the initial level of expenditure must have the Board’s prior approval, as must any work requiring representation.

Applications for civil legal aid are submitted to the Board by a solicitor acting on behalf of an applicant. The Board cannot accept applications from applicants direct. Civil legal aid will be made available if the Board is satisfied that the applicant is financially eligible, that he has probable cause (a plausible case) and that it is reasonable in the particular circumstances of the case that he should receive civil legal aid.

Financial eligibility for both advice and assistance and civil legal aid depends on disposable income and disposable capital and is assessed by reference to upper and lower limits of each. The test for financial eligibility for advice and assistance is a much simpler test than that which is applied to applicants for civil legal aid. For more information on the current financial thresholds you can visit the Board’s website.

4. Can legal aid be obtained for all disputes?

See Question 2 above.

Civil advice and assistance is available on matters involving the application of Scots law.

ABWOR is available for civil proceedings in a number of courts and tribunals which are designated in legislation. These include Immigration Appeal Tribunals and Employment Tribunals.

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Civil legal aid is available for civil proceedings in a number of other courts and tribunals which are designated in legislation. These include the Sheriff Court and the Court of Session, which are the principal courts in Scotland for civil matters. Legal aid is also available for a number of tribunals such as the Social Security Commissioners and Employment Appeal Tribunals.

Civil legal aid cannot be granted for proceedings wholly or partly concerned with defamation; election petitions; simplified divorce applications in the Court of Session or Sheriff Court; and petitions by a debtor for the sequestration of his estate. It cannot be made available for cases in the small claims court (ie where the value of a claim is less than £750).

5. Is there a specific procedure for emergencies?

A solicitor may undertake certain steps in proceedings as a matter of urgency in order to protect an applicant’s position before an application for civil legal aid is determined by the Board. Certain designated steps may be taken by the solicitor without the Board’s approval but others require approval before they can be taken.

6. Where can I obtain an application form for legal aid?

The Board will only accept applications which are submitted by a solicitor acting on behalf of an applicant.

7. Which documents should I attach to my request for legal aid?

Your solicitor will advise you about the documents which are required in relation to assessment of financial eligibility and the merits of your case.

8. Where should I register my request for legal aid?

The Board will only accept applications which are submitted by a solicitor acting on behalf of an applicant, not from applicants direct.

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The Law Society of Scotland can help you to get in touch with a solicitor. See below for contact details.

9. How will I be informed of whether or not I am eligible for legal aid?

Your solicitor will tell you if you are eligible to receive advice and assistance.

The Board will write to you and to your solicitor once your application for civil legal aid has been assessed.

10. If I qualify for legal aid, what should I do?

Your solicitor will advise you on the appropriate course of action.

11. If I qualify for legal aid, who will choose my lawyer?

You will have to consult a solicitor before you can apply for advice and assistance or legal aid. Legal aid can only be provided by a solicitor who is on the Board’s civil legal assistance register.

The Law Society of Scotland can help you to get in touch with a solicitor. See below for contact details.

12. If I qualify for legal aid, will this cover all the costs of my trial?

See question 1 above.

Legal aid covers only the costs of your own solicitor and other expenses related to your case such as court fees and expert opinions. Legal aid does not cover the other party’s costs.

If you are eligible for legal aid, you may be required to pay a contribution towards the costs of the case. The level of contribution payable will be based on your financial circumstances.

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13. If I qualify for legal aid, will it cover any review I might make following the trial?

The original legal aid certificate will not cover an appeal against the outcome of the case. A fresh application for legal aid is required and the Board must be satisfied that the tests of financial eligibility, probable cause and reasonableness are met in relation to the appeal.

14. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)?

The Board may withdraw legal aid in a number of circumstances; eg the assisted person may no longer be eligible because of a change in financial circumstances, the Board may no longer be satisfied that the assisted person has a plausible cause or it is reasonable for legal aid to continue, the assisted person may be causing the proceedings to be conducted unreasonably, the assisted person may have failed to provide information which the Board has requested.

Legal aid can also be terminated if the assisted person has provided false information or has failed to disclose material information and in those circumstances the Board may also recover any money it has paid out.

15. If I do not qualify for legal aid, can I appeal against this decision?

Your solicitor can submit a request for a review of the Board’s decision to refuse legal aid.

Further information

  • You can obtain further information about legal aid in Scotland from:

    Scottish Legal Aid Board
    44 Drumsheugh Gardens
    Edinburgh
    EH3 7SW

    telephone: 00 44 131 226 7061
    fax : 00 44 131 220 4878
    e-mail: general@slab.org.uk

  • You can obtain advice about how to get in touch with a solicitor from:

    The Law Society of Scotland
    26 Drumsheugh Gardens, Edinburgh EH3 7YR
    Telephone: +44 (0) 131 226 7411
    Fax: +44 (0) 131 225 2934
    E-mail: lawscot@lawscot.org.uk

« Legal aid - General information | United Kingdom - General information »

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Last update: 04-04-2006

 
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