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Act of Sederunt (Civil Legal Aid Rules Amendment) 2017

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Scottish Statutory Instruments

2017 No. 332

Legal Aid And Advice

Act of Sederunt (Civil Legal Aid Rules Amendment) 2017

Made

11th October 2017

Laid before the Scottish Parliament

13th October 2017

Coming into force

13th November 2017

In accordance with section 4 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013(1), the Court of Session has approved draft rules submitted to it by the Scottish Civil Justice Council.

The Court of Session therefore makes this Act of Sederunt under the powers conferred by section 38(1) of the Legal Aid (Scotland) Act 1986(2) and all other powers enabling it to do so.

Citation, commencement and transitional provision, etc.

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Civil Legal Aid Rules Amendment) 2017.

(2) It comes into force on 13th November 2017.

(3) A certified copy is to be inserted in the Books of Sederunt.

(4) The amendments made by paragraph 2 do not apply to applications for awards of expenses under section 19(1) of the Legal Aid (Scotland) Act 1986(3) where the application is made by motion enrolled or lodged before 11th December 2017.

Amendment of the Civil Legal Aid Rules

2.—(1) The Act of Sederunt (Civil Legal Aid Rules) 1987(4) is amended in accordance with this paragraph.

(2) In rule 1(2) (citation, commencement and interpretation), after the definition of “legal aid certificate” insert—

“motion”, in a simple procedure case, means an incidental orders application;.

(3) In rule 2(1) (revocations and transitional provision), for “the Schedule” substitute “schedule 1”.

(4) For rule 6 (expenses out of the Scottish Legal Aid Fund)(5), substitute—

Expenses out of the Scottish Legal Aid Fund

6.(1) An application to the court for an award of expenses under section 19(1) of the Act is to be made by motion in the proceedings.

(2) The applicant must—

(a)no later than 28 days before the motion is enrolled or lodged, send the Board(6)

(i)a completed notice in the form set out in schedule 2; and

(ii)where the form of notice identifies a requirement for circumstances to be established or vouched, such documents as are required to establish or vouch those circumstances;

(b)intimate the motion to the Board; and

(c)lodge with the motion copies of the notice and documents sent to the Board.

(3) The Board may—

(a)oppose the motion; and

(b)appear and be represented at the hearing of the motion.

(4) For the purposes of intimating and opposing such a motion, the relevant rules of procedure are to apply as if the Board was a party to the proceedings..

(5) In rule 7 (applications in respect of additional fees or percentage increases)(7), after paragraph (3) insert—

(3A) Such intimation must be made no less than 14 days before the date fixed for the hearing of the motion..

(6) Omit rule 8 (period of intimation)(8).

(7) The schedule is renumbered as schedule 1.

(8) After schedule 1, as renumbered, insert schedule 2 as set out in the schedule of this Act of Sederunt.

CJM SUTHERLAND

Lord President

I.P.D.

Edinburgh

11th October 2017

Paragraph 2(8)

SCHEDULE

Rule 6(2)(a)(i)

SCHEDULE 2

EXPLANATORY NOTE

(This note is not part of the Act of Sederunt)

This Act of Sederunt amends the Act of Sederunt (Civil Legal Aid Rules) 1987 by replacing rule 6 which concerns procedure in applications under section 19(1) of the Legal Aid (Scotland) Act 1986 (applications for expenses out of the Legal Aid Fund).

The new rule requires applicants to give the Scottish Legal Aid Board (“the Board”) advance notice of intention to apply for an award of expenses out of the Legal Aid Fund by completing a prescribed form and sending both it and supporting documents to the Board. The form and documents must be sent to the Board no less than 28 days before any motion applying for an award is enrolled or lodged.

Applications for awards of expenses out of the Legal Aid Fund continue to be made by motion, but such motions require to be intimated on the Board, and may be opposed by the Board as if it was a party to the proceedings.

(1)

2013 asp 3. Section 4 was amended by the Courts Reform (Scotland) Act 2014 (asp 18), schedule 5, paragraph 31(3) and by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2), schedule 1, paragraph 1(4).

(2)

1986 c.47. Section 38 was last amended by the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 (asp 3), section 15(1).

(3)

Section 19 was amended by the Legal Aid Act 1988 (c. 34), schedule 4, paragraph 8 and by the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), schedule 5, paragraph 2(3).

(4)

S.I. 1987/492, last amended by S.I. 1996/3202.

(5)

Rule 6 was amended by S.I. 1996/2148.

(6)

“The Board” is defined in section 1(1) of the Legal Aid (Scotland) Act 1986 (c.47).

(7)

Rule 7 was inserted by S.I. 1996/2148.

(8)

Rule 8 was inserted by S.I. 1996/2148.

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