Timing of the application and the status of the dispute

Your client needs to have made attempts to resolve their dispute before they apply for legal aid for court proceedings. You need to tell us what negotiations there have been to try to resolve matters.

The extent of the negotiations can vary depending on the type of case involved and your client’s interest in it.

You should refer to our subject specific guidance for information about what we need to support your applications, in addition to information about steps taken to try to resolve matters by negotiation.

We will consider whether an offer to settle the dispute has been made and, if it has, what its impact might be.

You have to tell us about any offers made. We also need full information about why you or your client do not consider the offer or tender reasonable.

In deciding whether the offer appears reasonable we will take into a range of factors depending on the nature of the case. These include:

• The likelihood of a finding of contributory negligence. You should estimate the percentage of claim that the court is likely to find was due to contributory negligence by your client if this is a possibility and refer to previous cases if possible.
• The likelihood of additional sums being clawed back under Section 17(2B) of Legal Aid (Scotland) Act 1986. This factor is particularly significant in consistorial cases.
• Whether the offer appears reasonable having regard to the sum the court is likely to award.
• In contact disputes, the likelihood of the court ordering more contact than is offered or ordering unsupervised contact.

We need to consider if there are other proceedings and potentially other applications where the dispute could be considered. We will not grant legal aid for separate proceedings if a claim or dispute could be resolved within an existing action, either as it stands or as amended. It may be more appropriate for your client to seek to amend an existing grant of civil legal aid.

There may be cases where both the Scottish and foreign courts have jurisdiction.  Factors that might be relevant in assessing which country is more appropriate include:

• The place of the accident.
• The place of business/residence of opponent.
• The location of witnesses.
• Whether there are existing related proceedings in the other jurisdiction.
• Existence of a statutory remedy in Scotland although the incident occurred abroad.