33. Section 17(2B) of the Act (which requires the amount of the net liability of the Fund on account of any party to be paid by that party out of any property recovered or preserved for him) shall not apply–
(a)in respect of any money payable–
(i)under a decree following on an action for aliment within the meaning of the Family Law (Scotland) Act 1985(1);
(ii)under an order for the payment of a periodical allowance under section 5 of the Divorce (Scotland) Act 1976(2), or for the making of a periodical allowance under section 8 of the Family Law (Scotland) Act 1985;
(iii)under any order for the periodical payment of sums for the maintenance of any person which, by virtue of the Maintenance Orders Act 1950(3), the Maintenance Orders (Reciprocal Enforcement) Act 1972(4) or the Civil Jurisdiction and Judgments Act 1982(5), may be enforced in Scotland;
(iv)under an order made by the Employment Appeal Tribunal or under any settlement arrived at to prevent or bring to an end proceedings in which such an order may be made;
(v)by way of disability working allowance, income support or family credit under section 129(6), 124(7) or 128(8) of the 1992 Act, or an income-based jobseeker’s allowance within the meaning of section 1(4) of the Jobseekers Act 1995(9) but excluding any sum treated as payable by way of a jobseeker’s allowance by virtue of section 26 of that Act (“an income-based jobseeker’s allowance”);
(vi)by way of aliment or periodical allowance or periodical payment of sums by virtue of any settlement arrived at to prevent or bring to an end proceedings in which such a decree or order as is mentioned in sub-paragraphs (i) to (iii) above may be granted;
(vii)by way of any payment made out of the social fund under section 138 of the 1992 Act;
(viii)by way of any housing benefit under section 130 of the 1992 Act(10);
(ix)by way of child support maintenance under the Child Support Act 1991(11);
(b)to the first £2,500 of any money, or of the value of any property, recovered or preserved by virtue of–
(i)an order for the payment of a capital sum under section 5 of the Divorce (Scotland) Act 1976; or
(ii)an order for payment of a capital sum or transfer of property or an incidental order, under section 8 of the Family Law (Scotland) Act 1985(12); or
(iii)any settlement arrived at to prevent or bring to an end proceedings in which such an order may be granted;
(c)in respect of any articles referred to in section 16 of the Debtors (Scotland) Act 1987(13) recovered or preserved from the effects of a grant of warrant sale of poinded goods, or any article released in terms of an order made by the sheriff following application made to him in terms of section 23 of said Act.
34. Where, after proceedings have been instituted in any court, a party thereto becomes an assisted person, the provisions of section 18(2) of the Act shall apply to so much of the expenses of the proceedings as were incurred while he was an assisted person.
35. Subject to regulation 32 above, where at any stage in the proceedings a party ceases to receive legal aid, he shall be deemed to be an assisted person for the purpose of any award of expenses made against him to the extent that those expenses were incurred before he ceased to receive legal aid.
36. Where an order for expenses is made against an assisted person who is concerned in proceedings in a fiduciary, representative or official capacity, he shall have the benefit of section 18(2) of the Act and his personal resources shall not be taken into account for that purpose, but regard shall be had to the value of the property or estate, or the amount of the fund out of which he is entitled to be indemnified.
37. Where an unassisted party is concerned in proceedings only in a fiduciary, representative, or official capacity, then for the purposes of section 19(3)(b) of the Act, the court shall not take into account his personal resources but shall have regard to the value of the property, estate or fund out of which the unassisted party is entitled to be indemnified, and may in its discretion also have regard to the resources of the persons, if any, who are beneficially interested in that property, estate or fund.
38. Where an award of expenses has been made by a court or tribunal under section 18(2) of the Act, the period within which it shall be competent for any party concerned in the award to apply to the court for reassessment of the amount of the award, on the grounds that since the award was made there has been a relevant change of circumstances, shall be one year after the date of the award.
39.—(1) This regulation applies where–
(a)any sum of money is recoverable under any award of or agreement as to expenses in favour of any party in any proceedings in respect of which he is or has been in receipt of legal aid; and
(b)that sum of money is due to be paid to the Board in terms of section 17(2A) of the Act(14).
(2) The Board may–
(a)take such proceedings in its own name or in the name of that party as may be necessary to ensure payment of any such sum to the Board, including proceedings to enforce or to give effect to any such award or agreement; and
(b)for those purposes do diligence in its own name or in the name of that party.
(3) Where any such sum is paid directly to the Board, the receipt of the Board shall be a good discharge therefor.
40.—(1) This regulation applies where–
(a)in any proceedings or under a settlement to avoid them or bring them to an end, any property is recovered or preserved for any party; and
(b)there is or may be an amount of net liability of the Fund on account of that party which is payable to the Board by that party, in priority to any other debt, out of any such property in terms of section 17(2B) of the Act, as read with regulation 33 above.
(2) The Board may–
(a)take such proceedings in its own name or in the name of the party as may be necessary to ensure payment of the amount of the net liability of the Fund on account of that party out of such property, including proceedings to enforce or give effect to any decision in the proceedings or any settlement; and
(b)for those purposes do diligence in its own name or in the name of the party.
(3) Where any such property is paid or made over to or held by the party or any solicitor acting for him in the proceedings–
(a)the party and his solicitor shall not, without the consent of the Board, deal in any way with, dispose or part with the possession of, or title to, such property unless and until the amount of the net liability of the Fund on account of that party is paid to the Board and a discharge received therefor;
(b)without prejudice to paragraph (2) above, the Board may take such action as it considers necessary to ensure payment of the amount of the net liability of the Fund on account of that party out of such property and to make effective the priority conferred by section 17(2B) of the Act and, without prejudice to that generality–
(i)where the property consists of or includes a sum of money, the Board may require the party or his solicitor to pay that sum of money, or any part of it, to the Board to be held and used by it in accordance with paragraph (4) below;
(ii)where the property consists of or includes a sum of money which has been paid to the party’s solicitor, the Board may deduct an amount equal to that sum from any sum due from the Fund to that solicitor;
(iii)where the property consists of or includes corporeal movables, the Board may require the party, at his own expense, either to sell them and pay the amount of the net liability of the Fund out of the proceeds or to deliver them to the Board to be held and used by it in accordance with paragraph (4) below; and
(iv)where the property consists of or includes an interest in land, the Board may require the party, at his own expense, either to sell that interest and pay the amount of the net liability of the Fund out of the proceeds or to grant a standard security over that interest in favour of the Board for the purpose of securing that amount, or any part of it, together with any interest thereon in terms of regulation 41 below.
(4) Where any such property is paid to or made over to the Board, in pursuance of this regulation–
(a)the receipt of the Board shall be a good discharge therefor;
(b)the Board shall, subject to the following provisions, hold such property on behalf of or to the account of the party;
(c)where the property consists of or includes corporeal movables, the Board may sell them and, after deduction of the expenses of sale, hold and use the net proceeds as if they had been properly paid to it;
(d)the Board shall deposit money paid to it in one general account with a bank or building society; and
(e)the Board shall, as soon as practicable, pay on behalf of the party the amount of the net liability of the Fund on account of the party out of such property and, where that amount is paid in full and subject to regulation 42(2) below–
(i)pay and make over any surplus monies or corporeal movables remaining in the possession of the Board to the party or to the person otherwise entitled thereto;
(ii)subject to paragraph (5) below, pay to the party or to such person a sum representing the gross interest earned on the money held for the party in accordance with this paragraph.
(5) The Board shall not be required to pay interest where the money held for the party does not exceed £500 or where the period during which it is held by the Board is less than 28 days.
(6) In this regulation “general account” means an interest bearing account opened in the name of the Board, the title of which does not identify any assisted person.
41.—(1) Any sum secured over an interest in land under regulation 40 above shall bear interest from the day on which the standard security over that interest in land is recorded or, as the case may be, registered.
(2) The rate of interest under paragraph (1) above shall be that which would apply (in the absence of any such statement as is provided for in Rule 7.7 of the Act of Sederunt (Rules of the Court of Session 1994) 1994(15)) in the case of a decree pronounced or extracted in an action in the Court of Session on the day on which the sum begins to bear interest, if interest were included in, or exigible under, that decree.
42.—(1) Any solicitor who has acted on behalf of the assisted person in the proceedings for which legal aid is made available before the date on which the application for legal aid was granted, and any solicitor who has by law a right of retention in respect of any documents necessary for the proceedings, and who has delivered them up subject to this, may give notice of the fact to the Board.
(2) Where, after paying the net liability of the Fund on account of the assisted person out of any property recovered or preserved for him, there are any surplus monies or corporeal movables remaining in the possession of the Board in terms of regulation 40(4)(e) above, the Board shall pay and make over any such surplus monies or corporeal movables to any such solicitor who has notified the Board as mentioned in paragraph (1) above.
1976 c. 39; section 5 was repealed on 1st September 1986 by Schedule 2 to the Family Law (Scotland) Act 1985 (c. 37) subject to a saving in section 28(3) of that Act.
Section 129 was amended by the Local Government Finance Act 1992 (c. 14), Schedule 9, paragraph 2, by the Social Security (Incapacity for Work) Act 1994 (c. 18), section 10 and Schedule 1, paragraph 32 and by the Jobseekers Act 1995 (c. 18), Schedule 2, paragraph 33.
Section 124 was amended and repealed in part by the Jobseekers Act 1995, Schedule 2, paragraph 30 and Schedule 3.
Section 128 was amended by the Jobseekers Act 1995, Schedule 2, paragraph 33.
Section 130 was amended by the Local Government Finance Act 1992, Schedule 9, paragraph 3 and by the Local Government etc. (Scotland) Act 1994 (c. 39), Schedule 13, paragraph 174(4).
Section 8 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), Schedule 8, paragraph 34 and by the Pensions Act 1995 (c. 26), section 167.
Subsection (2A) was inserted in section 17 by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Schedule 8, paragraph 36(6).
S.I. 1994/1443.