Expenses awarded against your client

A grant of civil legal aid covers only your fees and outlays.  If expenses are awarded against your client, and subject to any modification, they are personally liable for these.  The party entitled to expenses must look to your client for payment. However, in some circumstances they may obtain an order of court allowing payment of expenses out of the Fund [section 19 of the Legal Aid (Scotland) Act 1986].

If your client is found liable in expenses, they can apply to the court making the award for an order restricting the amount to one which they are capable of paying  [section 18(2) of the Legal Aid (Scotland) Act 1986].

This will be to an amount the court considers reasonable in all the circumstances of the case, including the means and conduct of all parties.  In many cases, the court will assess your client’s liability at “nil”, but as it it depends to a large extent on the client’s financial circumstances, there is no guarantee of this.  It is a matter for the court’s discretion. This procedure is generally referred to as “modification”.

Court rules set out various procedural steps which apply to motions for modification [rule 4, Act of Sederunt (Civil Legal Aid Rules) 1987].

You should be aware of the following points concerning competency of modification:

• Modification is incompetent after the court has decerned for payment of expenses in a particular amount, so the motion for modification should be made as soon as conveniently possible after the general liability for expenses has been determined and an award of expenses has been made, but before the court has made a decerniture for payment in a specific amount [Gilbert’s Trustee v Gilbert 1988 SLT 680; Stewart v Stewart 1989 SLT 80].
• Modification is competent only in respect of expenses incurred during legally aided parts of the case [regulations 34 and 35 of The Civil Legal Aid (Scotland) Regulations 2002].
• Modification is incompetent where work has been carried out under the “special urgency” provisions of regulation 18 but legal aid has subsequently been refused [M, Petitioner 2013 SLT 1043]
• Modification is incompetent where legal aid has been terminated under regulation 32, which relates to termination arising from false information. Termination under regulation 31 of The Civil Legal Aid (Scotland) Regulations 2002 does not affect the competency of modification for expenses incurred pre-termination.
• Modification is competent where your client has signed a joint minute agreeing to be liable for expenses [Jeffrey v Jeffrey 1987 SLT 488; Clelland v Clelland 1988 SLT 674]

Any party concerned can apply to the same court to reassess the amount of an award of expenses made if there has been a relevant change of circumstances .  The court may then reassess the amount of the award [section 20(4) of the Legal Aid (Scotland) Act 1986].

The application for reassessment must be made within one year of the date of the award [regulation 38 of The Civil Legal Aid (Scotland) Regulations 2002]. It should be done by a minute lodged in the original process [rule 4(3), Act of Sederunt (Civil Legal Aid Rules) 1987].