Work of an unusual nature

You need our prior approval for work of an unusual nature [Regulation 21 Civil Legal Aid (Scotland) Regulations 2002].

The relevant regulation provides us with wide discretion in relation to how decisions are to be made on the approval of unusual work. The regulation itself provides no definition of ‘unusual’; the test we should apply; or any factors to be taken into account. These are all matters at our discretion.

We define ‘unusual’ work as work which would not ordinarily and as a matter of course be expected to be carried out in the typical case of its kind, and/or in the particular circumstances of the case at hand.

In assessing a request to approve work of an unusual nature, we need to be satisfied that the proposed work is reasonable in all the circumstances of the case.

We will grant approval for work of an unusual nature where it is shown that the proposed work may assist in advancing the case or in its resolution; and that the work has due regard to economy of litigation.

All work done is subject to our scrutiny and possible abatement and may also be subject to taxation by the auditor. The requirement for prior approval operates as a safeguard for you. It is much better for you to know in advance that we are satisfied it is appropriate for you to carry out the proposed work.

Please note that work which would otherwise require our prior approval because it involves the employment of counsel, the use of experts, or which will result in unusually large expenditure cannot fall into this definition: these forms of work require prior approval in their own right.

Examples of work likely to be unusual

We regularly get asked about some scenarios which need approval for unusual work.

Use the drop down menu below to select a type of work and find out when approval would and would not be needed, and any guidelines on how the cost will be assessed.

Please note that these are examples and not an exhaustive list.

However, if the costs involved amount to over £3,000 excluding VAT, then our prior approval may still be needed for work involving unusually large expenditure.

Approval requests must be submitted via the online ‘Sanction’ function. This provides us with all the basic information and papers needed for a prompt decision. You should apply as soon as possible and not leave it until a proof or other hearing is imminent. A request for approval cannot be made via an online message.

Documents to be submitted with an application for approval (unusual)

If proceedings have already been commenced when you seek approval, you should:

• send us a copy of the initial writ or summons, defences or record with the application for approval
• draw our attention to averments relevant to the application
• when you send us lengthy documents (such as notes of evidence, judgements, reports, excerpts from textbooks) highlight relevant passages
• where appropriate, provide a copy of the court interlocutor ordering the work.

When applying for approval for work of an unusual nature, you should:

• give a full breakdown of the costs likely to be incurred
• state clearly what fees are proposed, including fees for reports, attendance at court and travel time and costs, with a statement of the basis of charge
• specify any subsistence and overnight accommodation charges. We expect solicitors, wherever possible, to secure accommodation and subsistence costs within the limits of £113.56. This is the prescribed limit that applies to counsel. All costs require to be justified even where they are within this rate
• fully explain the need for unusual work.

Approval for mediation in family cases

Prior approval is no longer required for the applicant’s share of the cost of family mediation so long as there is a full civil legal aid certificate in place which includes a relevant category code relating directly to the proposed work and the total cost does not exceed £3,000 (exclusive of VAT) –  in which case you would need to seek prior approval for work involving unusually large expenditure.

All work undertaken will, however, be subject to the usual accounts assessments and you may also need apply to increase your case cost limit.

Any pre-certificate family mediation will still require prior approval.

Our policy is to pay the applicant’s half share of the cost based on a maximum hourly rate of £105.20 (that’s £52.60 per hour). The mediator should be CALMS, Scottish Mediation or FMS accredited.

Legal aid will cover your client’s half share of the total mediation fee but not the opponent’s half share.  If the opponent is also receiving legal aid, they can ask us to meet the cost of their half share.  Otherwise, if you want funding for the total cost of mediation then our prior approval for unusual work will be needed.

Approval for mediation in non-family cases

The costs of non-family mediation may be allowed under civil legal aid. We will regard the costs of mediation in non-family cases as an outlay in your account.

Any approval covers your client’s own share of the total mediation fee only.  If the opponent is also receiving legal aid or advice and assistance they can ask us to meet the cost of their half share.

We will only consider requests for mediation involving accredited mediators

You should always get our approval before incurring an outlay for non-family mediation.

We need the following information:

• the form that the mediation will take and in particular, whether there will be legal representation on both sides
• details of the fees the mediator will charge
• estimate of the time to be spent by you on advising the assisted person before and after the mediation
• the prospects of success and the likelihood of being able to resolve the dispute by way of mediation
• your client’s attitude towards the mediation and the likelihood of both parties accepting the outcome of any mediation
• details of costs that may be avoided should the mediation go ahead, for example, avoiding a proof or other court hearing.

Where someone has a grant of civil legal aid (to be paid on a time and line basis), we will also consider paying your fees to attend the mediation if you can demonstrate that this would be reasonable and would assist the process of mediation.

Prior approval is no longer required for supervised contact where a legal aid certificate has been granted including a contact crave, only the applicant’s share of the cost is to be met and the cost amounts to less than £3,000. All work undertaken will, however, be subject to the usual accounts assessments and you may also need apply to increase your case cost limit.

If the applicant is meeting the whole cost of supervised contact or the application is pre-certificate, this will be regarded as unusual and prior approval for unusual work will still be required.

If the total cost of the applicant’s share will be over £3,000, then prior approval will be required for work involving unusually large expenditure.

If a final interlocutor is made, ordering contact on a supervised paid for basis then this is an expense that your client has to meet from their own funds. We cannot be responsible for any costs in connection with supervised contact after the court case has concluded.

Prior approval is only required for supported contact (for example, where the contact centre assists with handover) where the costs of supported contact exceed £3,000.

If a final interlocutor is made, ordering contact on a supported paid for basis then this is an expense that your client has to meet from their own funds. We cannot be responsible for any costs in connection with supported contact after the court case has concluded.

The cost of family therapy may be allowed where it is ordered by the court to resolve a family dispute.  This works allows all parties to feel they have been heard and to let them understand that the needs of their children are the priority.

The therapist to be instructed should be a fully qualified family therapist who is registered with a relevant regulator, such as the UK Council for Psychotherapy (UKCP), the British Association for Counselling and Psychotherapy or Counselling and Psychotherapy in Scotland (COSCA) or can otherwise show they are a member of an accredited register of therapists subject to appropriate quality assurance requirements.

Where an application is made for family therapy you need to:

• give details about the issues to be considered by the family therapist and how the therapy is to be conducted
• give details of any mediation or family therapy attempted previously together with the outcome
• detail any background factors which might reduce the prospects of family therapy having a successful outcome and explain why it is still considered that family therapy may assist
• detail the cost of the therapy, to include the therapist’s hourly rate. If there is a cost for travel, please explain the need for this and why it would not be appropriate to employ a more locally based therapist
• provide information about the number of sessions and the duration of the therapy
• give your assessment of the potential for success- is it likely that family therapy will resolve the case completely or narrow the issues in dispute
• provide details of the therapist and their qualifications and regulatory body
• provide a copy of the interlocutor ordering family therapy.

The Vulnerable Witnesses (Scotland) Act 2004 contains provisions relating to child and adult vulnerable witnesses and, in particular, special measures that can be put in place in certain circumstances.

You may need to seek our approval to use special measures to assist child and vulnerable adult witnesses. Such items include:

• a live television link where the child and/or adult vulnerable witnesses are located in a remote site not operated by the Scottish Courts Service
• a commissioner taking evidence.

Vulnerable witnesses and evidence on commission

If you are the person seeking this special measure, you can get cover for the costs of the commissioner appointed from us (if the commissioner is not a sheriff or judge in which case the Scottish Courts and Tribunal Service meets the costs).

It is important to include in your request all associated costs such as:

• clerks’ fees.
• shorthand writers’ fees.
• accommodation costs and travel costs.

Any associated costs not approved timeously cannot be paid for from the Fund.

Accounts information in relation to approval for special measures

Where appropriate, we need a detailed breakdown of the time spent and the rates charged for our Accounts Assessment Department to properly assess the outlay claimed.

The power to grant retrospective approval applies only to counsel, expert witnesses and unusual work.  It does not apply to work likely to involve unusually large expenditure.

We may grant retrospective sanction for unusual work if we are satisfied we would have given approval and that there was a special reason why prior approval was not applied for in that:

• you were prevented from making a timeous application for prior approval by circumstances which were beyond your control and these circumstances were ones which could not have been reasonably foreseen; or
• the circumstances were within your control, and ought to have been foreseen, but the oversight was nonetheless justifiable given the particular or unusual circumstances in which the expense was incurred.

The “special reason” must amount to more than simply plain oversight or ignorance of the Regulation.