Cost and benefit analysis

You have to send us information to satisfy us that your client is likely to get an outcome that has some practical benefit for them if the case is determined at proof or other final hearing.

In non-family applications we will generally examine your assessment of the likely costs of any case and balance these against the benefit your client will get from proceedings.  You must give us details of the potential costs of cases including those where proceedings are likely to be defended. This includes the cost of any fees, including fees for counsel, together with any outlays likely to be incurred. Please tell us if the costs of the case are likely to include additional costs directly related to your client’s protected characteristics so that we can take appropriate account of this.

We cannot meet the costs of a case if the court orders caution for expenses as a condition for continuing the case. The court will do this if it considers there is little or no basis for the claim and little likelihood of success. You must tell us immediately if such an order is made.

The approach we take to the cost benefit test was upheld in the case of McTear –v- Scottish Legal Aid Board 1997 SLT 108. In that case the court considered that, while cost alone cannot justify a refusal on reasonableness, balancing the cost of litigation against the potential benefit to the client and prospects of success where heavy expenditure of public funds was likely to be needed did not prevent us from effectively viewing the cost of the litigation as the deciding factor.

The cost benefit analysis applies to any value of financial claim. Property recovered or preserved by your client may be subject to clawback if they fail to recover judicial expenses fully. This could lead to little or no material benefit for them. We need to be able to assess any such risk at the outset so we need details on the total potential costs.

We will consider both the prospects of recovery and the ability to implement any outcome in a case. Where recovery or implementation is unlikely then spending public money on the matter may not be justified.

You need to give us your view on prospects for recovery and/or implementation. This assessment should refer to the circumstances of the opponent and their ability to meet any awards that may be made. We will consider this as part of our assessment of the application.

You also need to give a rating for prospects and say whether prospects are “excellent”, “good”, “fair” or “poor”.  In addition, you need to give a numerical assessment on the scale from 1 to 10 with “1” meaning the prospects are almost non-existent and “10” meaning a recovery and/or implementation is certain to happen.

You have to tell us why you consider it reasonable to grant civil legal aid if you assess the prospect of recovery as being either “fair” or “poor” (between 1 and 5).
Information about the prospects of recovery should include whether it is likely expenses will be recovered along with any damages or capital sum that may be awarded. Expenses should be sought in all non-family cases where the legally aided party is successful.

An order might be unnecessary if, for example, the existing situation between the parties is unlikely to change and a court order is not needed to prevent it changing. This may apply when there are issues relating to the residence of a child or where contact is being exercised without any interference.

In assessing whether it is reasonable to make civil legal aid available we need to consider the practical benefit your client will get from any proceedings. You should address the personal interest they have in a case and the benefit they will get from its outcome. You should tell us when a core aspect of the case is about advancing equality of opportunity and removing to minimising disadvantage experienced by your client due to their protected characteristics.

If no information is provided to show such interest and benefit we may refuse the application.

It may not be reasonable to fund an action where there is no active dispute between the parties. This could be when your client is contemplating proceedings to seek a residence order but the residence of a child is not actually being challenged. However each application needs to be looked at on its own facts and circumstances as there could be factors which mean an action is needed.

This is most likely to arise in defender applications, particularly for interdict. It may not be justified to defend such orders at public expense if they do not prevent any lawful act. This could be when an interdict seeks to prevent physical harm to another person.

It could also arise when your client is a pursuer wanting to oppose a counterclaim. It would not normally be reasonable to use public funds to resist an order if it will not disadvantage your client.

Your client needs to be able to use the remedy sought to make any grant of legal aid reasonable.

For example a spouse may want an order to transfer title in the matrimonial home. However if they cannot meet the mortgage payments or the lender refuses consent to the transfer from joint names on the mortgage the remedy sought might be valid but your client could not use it.

Your client must show they have a right, title and interest to be a party to the proceedings. The level of interest they have also means it may not justify the use of public funds.

Generally litigation that would have little or no material benefit to your client, or is brought simply to satisfy vague demands for justice or principle, would not be reasonable. Such a situation could arise when a bankrupt individual wants to bring or defend proceedings that will give them no practical benefit.