New prior approval applications policies and guidance published

We have published the next release of policies, decision-makers’ guidance (DMG) and new or revised legal aid guidance (LAG) for solicitors on Civil, Children’s and Criminal applications.

They give details about what information we need to consider a request for prior approval and how we make our decision.

We made changes in some areas to reduce the steps you have to take. We reduced the instances where you need to apply for prior approval and raised the limit beyond which you need approval for unusually large expenditure from £2,000 to £3,000 in civil and children’s legal aid.

The publication is part of a release programme through our Guidance on the Administration of Legal Aid (GALA) project.

This update provides information on prior approval applications for the following aid types:

• Children’s
• Civil
• Criminal

The new policy statements and DMG are available for the following children’s applications subject matters:

1. Prior and retrospective approval for the employment of counsel
2. Prior and retrospective approval for the employment of expert witnesses
3. Prior and retrospective approval for unusual work
4. Prior and retrospective approval for work involving unusually large expenditure

Key changes to prior approvals in children’s legal aid

We have used the GALA process as an opportunity to review situations where our guidance is not consistent across the aid types. We are making changes to achieve consistency and transparency wherever this is possible and appropriate.

As part of this work we have made some changes to our children’s guidance to bring it into line with the approach we take to prior approvals in other aid types. This will reduce the instances where you need to apply for prior approval in the following situations:

Prior Approval for counsel

From the point we grant prior approval for counsel to conduct a proof or appeal under children’s legal aid, then counsel can take the following steps without the need for you to ask for further prior approval. This continues up to the conclusion of the proof or appeal.

• 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 oral advice or advice in written Note form to the solicitor, such as work to be done.
• view evidence in an agreed location where it cannot be viewed at counsel’s ordinary place of work
• draft a Note of Disputed Issues, Minute of Agreement of certain evidence or any other written information/document/interrogatories requested by the court.

Prior approval for unusual work – specification for recovery of documents

Prior approval is no longer required for a specification of documents to recover evidence in children’s proceedings where a grant of children’s legal aid is in place. Prior approval is only needed where you want to proceed to a commission without first going through the procedures available to allow the documents to be voluntarily produced by the haver following service of the interlocutor authorising their disclosure.

Prior approval for unusually large expenditure

We have raised the limit beyond which you need approval for unusually large expenditure from £2,000 to £3,000.

The new policy statements and DMG are available for the following civil applications subject matters: 

1. Prior and retrospective approval for the employment of expert witnesses
2. Prior approval for work involving unusually large expenditure
3. Prior and retrospective approval for applications to increase case cost limits
4. Prior and retrospective approval for execution of diligence

Key change to prior approvals in civil legal aid

 Prior approval for unusually large expenditure

• We have raised the limit beyond which you need approval for unusually large expenditure from £2,000 to £3,000.

We are currently working on our policy for prior and retrospective approval for the employment of counsel.

We are also carrying out further work around our policy on prior approval for unusual work following our consultation.

More information will be available on these decision sets in due course.

The new policy statements and DMG are available for the following criminal applications aid types in: 

• Solemn
• Appeals
• Summary
• Duty

The new policy statements and DMG are available for the following criminal applications subject matters: 

1. Prior approval for the employment of counsel, covering:

• automatic employment of counsel where prior approval is not needed
• the circumstances where approval cannot be given
• counsel in Sheriff Court cases
• counsel in High Court cases
• counsel in Appeal Court cases
• counsel in UK Supreme Court cases
• employment of senior counsel and more than one junior counsel
• the circumstances where retrospective approval of counsel can be considered.

2. Prior approval for the employment of expert witnesses, covering:

• the information we need when considering requests
• what work can be covered
• the difference between experts and factual witnesses
• experts’ qualifications
• experts’ costs
• the circumstances where retrospective approval of experts can be considered.

3. Prior approval for unusual work, covering:

• the information we need when considering requests
• definitions of unusual work
• examples of unusual work
• how we consider requests.

There are two areas where prior approval for unusual work is no longer required:

• • precognitions on oath

Prior approval is no longer required for conducting a precognition on oath where a grant of criminal legal aid is in place.

• • evidence being taken on commission

Prior approval is no longer required for attendance of a second solicitor where evidence is being taken on commission at a SCTS remote site.

4. Prior approval for work involving unusually large expenditure, covering:

• the information we need when considering requests
• definitions of unusually large expenditure
• how we consider requests

For more information about this update or the GALA project please contact:

Marie-Louise Fox

Director of Strategic Development

E: FoxMa@slab.org.uk