What work will approval for counsel cover in 2011 Act court proceedings?

Where we have granted prior approval to you for counsel to conduct a proof or appeal, then from that point on counsel can:

• consult with the client
• consult with witnesses and other parties to the proceedings including the Reporter
• conduct all pre proof, preliminary hearings and case management hearings unless they are so straightforward that the solicitor can undertake them
• provide advice in oral and/or written note form to the solicitor regarding work to be done etc. We consider that a “necessary note” is where counsel provides a legal opinion or substantive note on the line of evidence which is clearly integral to your client’s case. Necessary notes do not include usual correspondence between counsel and the instructing solicitor. A formal Opinion from counsel is not required to advise the solicitor on matters and will not be paid for at the Account’s stage unless we have granted specific approval for this
• view evidence in an agreed location where it cannot be viewed at counsel’s ordinary place of work including JII’s if the Reporter is relying on one in evidence and is unable to send the solicitor a copy.

There is no longer any need for further specific approval applications to us for the above work.

Notwithstanding our approval being given for counsel’s involvement, all work undertaken will nonetheless require to be justified when the fee notes are submitted and will be subject to the usual Account’s assessment.

Where we have granted prior approval to you for counsel to conduct a proof or appeal, you must seek our prior approval for any work which is not usually carried out in the preparation or conduct of the type of court hearing in question.

Such approval will require to be sought for:

• formal written Opinions
• ICSO extension hearings before a sheriff unless they are taking place on the same day as any pre proof, preliminary, case management or full evidential hearing which counsel is conducting anyway
• site visits
• any other work that is not usually carried out in the type of proceedings in question

Preparation

Where approval has been granted for the conduct of the proof counsel needs to be mindful of the provisions to be satisfied before any additional fee for preparation can be allowed.

The fees payable to counsel, as prescribed in Schedule 4 of The Civil Legal Aid (Scotland) (Fees) Regulations 1989, generally include all associated preparation work.

An additional fee for preparation can only be allowed where we are satisfied that the terms of paragraphs 5 and 6 of Schedule 4 have been met. No fee is payable unless it relates to a proof, debate or like hearing and counsel has been instructed to attend that hearing.

We do not consider it appropriate for counsel to conduct hearings which are routine, procedural or do not advance the cause. Hearings we consider do not necessarily need counsel are:

• hearings to consider extension or variation of an interim compulsory supervision order
• agreed adjournments/deferred hearings.

Where approval is granted for junior counsel and/or senior counsel to conduct an appeal before the Sheriff Appeal Court or where you have automatic approval for junior counsel and/or approval for senior counsel to conduct an appeal before the Court of Session then this grant of sanction will include:

• drafting Adjustments to the draft Stated Case
• the conduct of any hearing on adjustments
• drafting additional questions for the draft Stated Case
• drafting any Note of Argument if called for by the court
• drafting any List of Authorities if called for by the court
• consultation(s) with the client prior to the appeal taking place
• conduct of the appeal hearing itself.

Further approval is not required for such appeals unless we specifically tell you in advance that we are restricting such approval for counsel. It is open to us to restrict the scope of any approval we grant for counsel to act in a case.

If approval is granted for counsel to conduct the full proof or appeal hearing and the decision of the sheriff is then appealed to the Sheriff Appeal Court, the following will be required:

• a fresh approval application for counsel to conduct the appeal before the Sheriff Appeal Court
• a fresh approval application for counsel to conduct the disposal hearing before the sheriff, if the appeal is successful and remitted back to the sheriff.

If approval is granted for counsel to conduct the full proof or appeal hearing and the decision of the sheriff is then appealed directly to the Court of Session, the following will be required:

• a fresh approval application for more than one junior counsel, senior counsel or senior acting with junior counsel to conduct the appeal before the Court of Session
• a fresh approval application for counsel to conduct this disposal hearing before the sheriff, if the appeal is successful and remitted back to the sheriff.

If approval is granted for counsel to conduct an appeal before the Sheriff Appeal Court and the decision of that court is then appealed to the Court of Session, the following will be required:

• a fresh approval application for more than one junior counsel, senior counsel or senior acting with junior counsel to conduct the appeal before the Court of Session
• a fresh approval application for counsel to conduct the disposal hearing before the sheriff, if the appeal is successful and remitted back to the sheriff.

You can request approval from us to employ counsel for various purposes short of conducting the case itself including, but not limited to:

• counsel to draft a formal Opinion
• counsel to consult with the client or other party or witness
• counsel to draft a Devolution Minute
• counsel to draft a child and/or vulnerable witness Application
• counsel to draft a Petition for Specification of Documents.

If you want to seek approval for counsel to carry out non advocacy work you need to tell us:

• what work you are actually seeking counsel to carry out
• what level of counsel you seek to carry out this work
• the background to the case and the complexities involved
• what exactly is the legal issue counsel requires to consider if an Opinion is sought
• why it is appropriate for counsel to carry out this work.

In terms of the appropriateness test you require to tell us:

• what will the material benefit of the involvement of counsel bring to the case at this stage
• if the involvement of counsel at this stage will save time and/or expense in the long run. For example, if counsel’s advice is needed to decide whether the case or appeal has merit.
• If counsel’s contribution will help progress or resolve the case and, if so, in what way
• why this matter is so complex, novel or unusual that it appears to be appropriate to use counsel at this particular stage
• any other relevant factors.

Counsel’s precise fees do not need to be included in any application for approval for counsel. These are not agreed in advance. They are a matter for our Accounts Assessment Department at a later stage when the approved work has been carried out.

Where you require counsel’s involvement in a children’s legal assistance case, you must apply to us for approval before employing counsel to carry out the work. In terms of our Regulations we can approve the employment of counsel retrospectively, but only if two tests can be satisfied which are:

1. we would had granted approval for counsel had prior approval been sought
2. we consider there was special reason you did not apply for prior approval.

To satisfy the first test you must:

• provide us with sufficient information in terms of our guidance as if the work is still to be carried out.

To satisfy the second ‘special reason’ test you must tell us:

• in what way you were prevented from making a prospective application
• if these particular circumstances were beyond your control or could not have been reasonably foreseen and , if so , in what way or
• if these particular circumstances were within your control and ought to have been foreseen, then why you consider this oversight to be still justifiable in the particular or unusual circumstances in which the expense was incurred.

The ‘special reason’ test will not be met where:

• you simply forgot to apply for approval
• you did not know you had to apply for approval and had not therefore read this guidance
• where prior approval was applied for but refused by us.