The Advice and Assistance and Civil Legal Aid (Special Urgency and Property Recovered or Preserved) (Scotland) Regulations 2011

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Advice and Assistance (Scotland) Regulations 1996 (“the 1996 Regulations”) and the Civil Legal Aid (Scotland) Regulations 2002 (“the 2002 Regulations”).

Regulation 3 amends regulation 16(2) of the 1996 Regulations. Regulation 16 prescribes exceptions to the rule in section 12(3) of the Legal Aid (Scotland) Act 1986 (“the Act”) that the fees and outlays payable to a solicitor providing Advice and Assistance should be paid out of any property recovered or preserved before any call is made on the Fund. The effect of regulation 3 is to remove certain categories of property recovered or preserved from the exceptions provided for in regulation 16(2).

Regulation 5 amends the provisions in regulation 18 of the 2002 Regulations, which deal with the availability of legal aid for specially urgent steps undertaken before an application for legal aid is determined. The changes restrict the range of steps for which legal aid may be made available without prior application. The changes also prevent legal aid being made available in various circumstances where an application to the Board to certify urgent steps relates to the same proceedings where an application for legal aid has already been refused, or treated as abandoned, or the Board has ceased to make legal aid available.

Regulation 6 amends regulation 33 of the 2002 Regulations. Regulation 33 prescribes exceptions to the rule in section 17(2B) of the Act that any net liability of the Fund should be paid to the Board out of any property recovered or preserved in the proceedings in question or under any associated settlement. The effect of regulation 6 is to remove certain categories of property recovered or preserved from the exceptions provided for in regulation 33.