Approval for two or more junior counsel, or for senior counsel acting alone or with junior counsel, in children’s court proceedings

With the exception of one junior counsel acting in the Court of Session, you must always seek our prior approval for:

• one junior counsel in the sheriff court or Sheriff Appeal Court
• two or more junior counsel in the sheriff court, Sheriff Appeal Court or Court of Session
• senior counsel acting alone in the sheriff court, Sheriff Appeal Court or Court of Session
• senior counsel acting with one or more junior counsel in the sheriff court, Sheriff Appeal Court or Court of Session.

If you intend to seek approval for more than one junior counsel then, in addition to the factors laid out for seeking one junior counsel to act, you must tell us if:

• the case is unusually lengthy ( where the court hearing is set down for fifteen or more days), with large numbers of witnesses and/or productions
• there are substantial legal arguments to be made which will involve consideration of a considerable amount of case law or other legal materials and you have explained what these are
• the court is dealing with the case in a way which will involve a level of preparation which will be complex, time consuming and beyond what one counsel could reasonably be expected to undertake
• if we have already granted approval for senior counsel and there are exceptional circumstances and/or unusual elements which rarely occur in the type of case which show why representation by two or more junior counsel is appropriate.

Where the volume of evidence in a particular case renders it factually complex, approval for leading junior counsel assisted by junior counsel might be considered to be more appropriate than senior and junior counsel.

If you intend to seek approval for senior counsel to act alone then, in addition to the factors laid out on seeking one junior counsel to act, you must tell us if:

• there are issues of exceptional complexity, novelty and/or sensitivity when considered against the generality of similar cases and you must specifically explain what these are and/or
• the forum is one in which there are reasonable expectations that senior counsel would appear in the type of case at hand.

To be ‘exceptional’, we need to be satisfied that there are unusual elements which rarely occur in the type of case and which show why representation by senior counsel is appropriate.

You need to tell us if:

• the particular skills of senior counsel could bring resolution to the case or focus the issues to be considered by the court and, if so, in what way and/or
• the law applicable to the case is particularly complex or there are issues to be raised which have not previously been raised before the court and/or
• a decision has previously been taken in a case with similar circumstances which does not support the case and/or
• there is a conflict of complex authorities to be resolved at a high level and/or a situation where previous case law may require to be distinguished and/or
• there is particularly difficult, complex expert evidence to be led and/or
• there are any other exceptional factors in the particular case which have been detailed in the application.

We usually do not find the following situations to be ‘exceptional’:

• the sole fact that the appeal is taking place in the Court of Session. Junior counsel could still be appropriate to represent the applicant there or
• if the proceedings are taking place in the sheriff court. Unless there is an issue of clear exceptionality involved we will not approve senior counsel to act. It is rare for sheriff court cases to involve factors which make it appropriate for senior counsel to conduct the proceedings. Reporters normally conduct the proceedings themselves in the sheriff court and rarely instruct junior or senior counsel
• If the Reporter does instruct senior counsel to act on their behalf this will not be a sufficient basis for the employment of senior counsel in itself.  However, this does highlight the importance placed on the matter by the Reporter and we will find this fact persuasive.

If you intend to seek approval for junior counsel in additional to senior counsel then, as well as the factors laid out on seeking one junior counsel to act, you must tell us: 

• if the case involves a matter of unduly complex and novel law and explain what this is and/or
• if the case involves an unusually high volume of productions and/or witnesses and/or
• if the progress of the case will be slowed down if both counsel are not involved and explain in what way. There will always be an instructing solicitor to assist with the case , the client and note the evidence and/or
• what junior counsel’s involvement would bring to the case and explain the particular areas of work they will be required to undertake that the instructing solicitor could not.