‘Clawback’ in civil legal aid: our right to recoupment from property recovered or preserved

Section 4(3)(c) of the Act requires us to pay into the Fund “any sum which is to be paid in accordance with section 17 of this Act out of property recovered or preserved for any party to any proceedings who is in receipt of civil legal aid”.

Section 17(2B) provides that “except insofar as regulations made under this section otherwise provide, where, in any proceedings, there is a net liability of the Fund on the account of any party, the amount of that liability shall be paid to the Board by that party, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him –

in the proceedings, or
under any settlement to avoid them or to bring them to an end.”

This is commonly known as “clawback”.

In addition, regulation 33 of the Civil Legal Aid (Scotland) Regulations 2002 gives a list of exemptions from clawback, and regulation 40 gives us enforcement powers.

You should also follow this guidance when assessing whether property has been recovered or preserved in advice and assistance.

If you think that a client may have to pay towards their case from property recovered or preserved, you should always

explain this to them before they apply for advice and assistance and/or civil legal aid
give them a copy of our leaflet Civil legal aid – Information for Applicants.

Legal background and rationale for property recovered or preserved provisions in civil legal aid