Applying for approval to employ an expert

You must apply to us for approval online and provide all the information requested.  In a case of exceptional urgency, you may apply by telephone then send us the online application if we grant or part grant your application over the telephone.

You should send us (uploaded as attachments), with the online application for approval:

• a copy of the disputed Statement of Grounds or Grounds of Appeal or Stated Case (if they have not been previously submitted under that particular legal aid reference number)
• the previous/original report obtained, if a supplementary report is sought
• copies of any other relevant reports that have been obtained by your client or other parties, including the Reporter, where you are seeking approval for further expert opinion.

If you have already submitted the above documents under that particular reference number they will still be held by us and you do not need to resend them.

Please highlight or make reference to relevant passages in lengthy documents that you are relying upon in support of the approval application.

In general, you should apply for our prior approval as soon as possible and not leave it until a proof or other court hearing has commenced or is imminent.

However, you should delay asking for our prior approval for an expert witness until:

• it is clear that a specific expertise will be needed to advance the case
• that a particular named expert is available to provide the necessary report/evidence
• that you are in possession of a detailed breakdown of the expert’s proposed costs.

In addition, and in relation to expert approval applications in S154 appeals before the sheriff, Part 7 of Practice Note no 1, 2018 for the Sheriffdom of Glasgow and is noted here which states that:

“7.1       Where an appeal is lodged against the grant of a compulsory supervision order, the court will fix a substantive hearing rather than a procedural hearing unless the appellant indicates, at the time of lodging the appeal, that there is a specified logistical, legal, evidential or procedural matter that requires to be determined in advance of the appeal hearing.

7.2       Where the appellant so indicates, the court will fix a procedural hearing for the purpose of determining the logistical, legal, evidential or procedural matters specified by the appellant.

7.3       For the avoidance of doubt, and without prejudice to the sheriff’s powers under section 155 and Rule 3.56, any motion that the appellant be allowed to lead evidence in support of the appeal must be made at the time of lodging the appeal and will be determined at a procedural hearing fixed in terms of the foregoing paragraph.”

Similar provisions can be found at Part 10 of Practice Note no 2, 2018 for the Sheriffdom of Lothian and Borders.

For an appeal taking place in Glasgow sheriff court and courts within the Sheriffdom of Lothian and Borders, you will require to address in any such approval application whether you have made a motion to the sheriff to lead such evidence and whether the motion has been granted by the sheriff. If this is not addressed we may continue or refuse your approval application as it is undecided if the sheriff is prepared to hear such evidence.

Therefore, you should make the motion at the time you lodge the appeal on the basis that the expert will support your client’s appeal. If the expert is approved by us and does not then support your client’s case you can simply not call them to give evidence. It is not considered to be a reasonable use of public funds to approve such a report until a sheriff has agreed to hear from such an expert.

We may approve the employment of an expert witness retrospectively, but only if:

• we would have done so if prior approval been sought
• we consider there was special reason you did not apply for prior approval.

There is no definition of special reason in our legislation but we will regard either of the two factors below as amounting to special reason:

• if you were prevented from making a prospective application because of circumstances beyond your control and these circumstances were ones which you could not have reasonably foreseen; or

• if you can show there were circumstances within your control, which ought to have been foreseen, but the oversight was still justifiable in the particular or unusual circumstances in which the expense was incurred.

If you just forgot or did not know that you always have to seek our prior approval then we do not regard this as a ‘special’ reason.

The provisions for retrospective approval do not apply where our prior approval was sought but refused.