Civil Legal Aid
Increased Eligibility for Legal Aid
In the context of the significant increase in the financial eligibility limits for Civil Legal Aid, the Professional Practice Committee considered whether solicitors should advise existing clients with current cases of these changes.
The Committee's previously published position as to a solicitor’s duty in this context can be found at paragraph 10.04.02 of "Law, Practice and Conduct for Solicitors" by Alan Paterson and Bruce Ritchie. “A solicitor is under a duty to advise clients who may be eligible about the existence of the legal aid scheme, including advice and assistance. Examination of the client’s eligibility however depends on the client requesting that and the solicitor being willing to do so. Firms not offering Legal Aid should inform potential clients of this at the outset and advise them to consult another firm.”
Applying its previously published position to the current situation it agreed that if a firm has previously written to clients to advise it does not offer Legal Aid, and this remains its position, there is no need for this firm to repeat this intimation to clients. If however a firm has previously advised clients that they do not appear to be eligible for Legal Aid it should to write to such clients who are involved in ongoing transactions and inform them of the significant increase in the financial eligibility limits for Civil Legal Aid. Further and as appropriate the firm should advise them either (a) that the firm is not prepared to offer Legal Aid and advise them to consult another firm or (b) if they wish to enquire about their eligibility to contact the firm.
Is Civil Legal Aid provision in Scotland at crisis point?
Following anecdotal evidence of dissatisfaction with the civil legal aid system, the Society made the decision at the beginning of 2007 to undertake a more formal evidence-gathering exercise.
This was reinforced by a motion raised by the Family Law Association at the Society's AGM on 9th March 2007, calling for the Society to urge the Executive to carry out an immediate review of solicitors' rates and to effect an "actual and significant increase in fees".
The Society agreed the motion on the understanding that practitioners would have to submit their views on the current system and its perceived failings so that the Society could make evidence-based proposals for reform.
To that end, the Society created a questionnaire comprising 14 questions (one of which had two parts). It was designed to be completed online but a printable version was also created to allow respondents to post, fax or email their responses. The questionnaire was published on the Society's website and advertised in the Ezine and the Journal. It was also sent by email directly to firms registered to carry out civil legal aid.
To view the research results, click here.
The Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2007
In accordance with section 14(1C) and (1D) of the Legal Aid (Scotland) Act 1986, Scottish Ministers have issued a Direction to the Scottish Legal Aid Board ("the Board") for the granting of civil legal aid in exceptional cases concerning defamation or verbal injury cases.
Where a Direction is issued the Board must comply with it. The Direction can be seen by clicking here.
Civil legal aid is generally not available for defamation and verbal injury proceedings and the Direction will not remove that general exception. The Direction sets out additional criteria, on which the Board is required to satisfy itself when considering an application for civil legal aid, for defamation and verbal injury actions. These criteria are in addition to the normal statutory tests of probable cause, reasonableness and financial eligibility.
These additional criteria are that the case, to which the application refers, must have a wider public interest or convincing evidence that there are other exceptional circumstances meaning, that without public funding for representation, it would be practically impossible for the applicant to bring or defend the proceedings leading to obvious unfairness.
In considering the exceptional circumstances the Board is also required to be satisfied that the degree of exceptionality is the same or approximately the same as the facts found in the case of Steel and Morris v the United Kingdom ([2005] ECHR 103).
