Legal Aid (Scotland) Act 1986

Part IIS Advice and Assistance

6 Definitions. S

(1)In this Act—

• “advice and assistance” means any of the following—

(a)oral or written advice provided to a person by a solicitor (or, [F1where appropriate], by counsel)—

(i)on the application of Scots law to any particular circumstances which have arisen in relation to the person seeking the advice;

(ii)as to any steps which that person might appropriately take (whether by way of settling any claim, instituting, conducting or defending proceedings, making an agreement or other transaction, making a will or other instrument, obtaining further legal or other advice and assistance, or otherwise) having regard to the application of Scots law to those circumstances;

(b)assistance provided to a person by a solicitor (or, [F1where appropriate], by counsel) in taking any steps mentioned in paragraph (a)(ii) above, by taking such steps on his behalf or by assisting him in so taking them; and

• “assistance by way of representation” means advice and assistance provided to a person by taking on his behalf any step in instituting, conducting or defending any proceedings—

(a)before a court or tribunal; or

(b)in connection with a statutory inquiry,

(2)In this Part of this Act—

• “client” means a person who seeks or receives advice and assistance in accordance with this Part of this Act;

• “statutory inquiry” has the meaning assigned to it by [F2section 16(1) of the M1 Tribunals and Inquiries Act 1992];

• “the solicitor” means the solicitor by whom any advice and assistance is provided or, where it is provided by counsel, the solicitor on whose instruction counsel provides it;

• “tribunal” includes an arbiter or oversman, however appointed.

7 Application of Part II. S

(1)Subject to subsections (2) to (4) below, and to any exceptions and conditions prescribed by regulations made under this section or under section 9 of this Act, this Part of this Act applies to any advice and assistance.

(2)This Part of this Act does not apply to advice and assistance provided to a person in connection with proceedings before a court or tribunal at a time when he is receiving legal aid in connection with those proceedings.

(3)Subject to subsection (4) below and to section 9 of this Act, this Part of this Act does not apply to assistance by way of representation.

(4)Except where subsection (2) above applies, this Part of this Act does apply, in the case of civil proceedings before a court or tribunal, to any step which consists only of negotiating on behalf of a person with a view to the settlement of a claim to which the proceedings relate.

8 Availability of advice & assistance. S

Subject to section 11(2) of this Act, advice and assistance to which this Part applies shall be available in Scotland for any client if—

(a)his disposable income does not exceed [F3£166] a week; or

(b)he is (directly or indirectly) in receipt of [F4income support [F5, an income-based jobseeker’s allowance (payable under the Jobseekers Act 1995)] or family credit],

and his disposable capital does not exceed [F6£1,000.]

9 Regulations may apply Part II to representation. S

(1)Regulations made under this section may provide for this Part of this Act to apply to assistance by way of representation; and regulations so made may make different provision for different cases or classes of case.

(2)Such regulations may—

(a)describe the proceedings (or stages of proceedings) in relation to which this Part of this Act shall so apply by reference to the court, tribunal or statutory inquiry, to the issues involved, to the capacity in which the person requiring the assistance is concerned, or in any other way;

(b)specify, in relation to any proceedings so described, the assistance by way of representation which may be provided;

(c)prescribe the criteria to be applied in determining whether assistance by way of representation should be provided;

(d)require that the approval of the Board or of such other appropriate authority as may be prescribed shall be obtained, in certain classes of case, as a pre-condition of the provision of assistance by way of representation; and

(e)modify the financial limits under sections 8 and 10(2) of this Act in their application to assistance by way of representation by substituting for the sums specified therein such other sums as may be prescribed, and such modification of the financial limit under the said section 10(2) may substitute different sums in relation to different proceedings or stages of proceedings.

(3)Such regulations may also make provision, for the purposes of paragraph (d) of subsection (2) above, as to—

(a)the procedure to be followed in applying for approval and the criteria for determining whether approval should be given;

(b)the conditions which should or may be imposed; and

(c)the circumstances in which approval may be withdrawn and the effect of its withdrawal.

11 Clients’ contributions. S

(1)A client shall not be required to pay any fees or outlays in respect of advice and assistance received by him in pursuance of this Part of this Act except in accordance with subsection (2) [F11or (3)]below.

(2)Where—

(a)a client’s disposable income exceeds [F12£69]a week; and

(b)he is not (directly or indirectly) in receipt of [F13income support , an income-based jobseeker’s allowance (payable under the Jobseekers Act 1995)] or family credit,

he shall be liable to pay, in respect of the advice and assistance, fees or outlays up to, but not in aggregate exceeding, such amount as may be prescribed by regulations made under this section, and such regulations may prescribe different maximum payments for different amounts of disposable income and for different cases or classes of case.

[F14(3)Where a client to whom paragraphs (a) and (b) of subsection (2) above apply receives criminal legal assistance from a solicitor employed by the Board by virtue of section 28A of this Act, he shall pay to the Board such contribution in respect of that assistance as the Board may, subject to subsection (4) below, determine.

(4)The amount determined by the Board under subsection (3) above shall not exceed the amount which could have been charged in respect of the assistance in question by a solicitor.]

12 Payment of fees or outlays otherwise than through clients’ contributions. S

(1)In this section, in relation to advice and assistance provided by a solicitor employed by—

(a)a firm of solicitors;

(b)an incorporated practice; or

(c)the Board,

in the course of that employment (or by counsel on instructions given to him by such a solicitor), “the solicitor” includes the firm, incorporated practice or the Board, as the case may be.

(2)This section applies to any fees or outlays properly chargeable (in accordance with section 33 of this Act), in respect of advice and assistance given to a client in pursuance of this Part of this Act

[F15; but does not apply to the salary payable to a solicitor employed by the Board by virtue of section 28A of this Act.]

.

(3)Except in so far as regulations made under this section otherwise provide, fees or outlays to which this section applies shall be paid to the solicitor as follows—

(a)first, out of any [F16amount] payable by the client in accordance with section 11(2) of this Act;

(b)secondly, in priority to all other debts, out of any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to the client by any other person in respect of the matter in connection with which the advice and assistance is provided;

(c)thirdly, in priority to all other debts, out of any property (of whatever nature and wherever situated) which is recovered or preserved for the client in connection with that matter, including his rights under any settlement arrived at in connection with that matter in order to avoid or bring to an end any proceedings;

(d)fourthly, by the Board out of the Fund, following receipt by it of a claim submitted by the solicitor.