Legal aid in matters of special urgency
18.—(1) The Board may make legal aid available for specially urgent work undertaken before an application is determined, if it is satisfied that at the time such work was undertaken there was probabilis causa litigandi and it appears to the Board that it is reasonable in the particular circumstances of the case that the applicant should receive legal aid, in either of the following circumstances:–
(a)where any step specified in paragraph (2) below has required to be taken as a matter of special urgency to protect the applicant’s position; or
(b)in any other circumstances where the Board is satisfied on application that steps require to be taken as a matter of special urgency to protect the applicant’s position.
(2) The steps referred to in paragraph (1)(a) above are–
(a)such steps as may be appropriate to intimate an intention to oppose proceedings;
(b)such steps as may be appropriate to state the basis upon which proceedings are opposed;
(c)such steps as may be appropriate to repone or otherwise recall a decree in absence;
(d)moving to sist further procedure or opposing the recall of a sist;
(e)moving to prorogate the time for compliance with any order or rule;
(f)moving or opposing a motion for discharge of any diet;
(g)moving for or opposing decree by default;
(h)moving for or opposing a motion for summary decree;
(i)initiating proceedings to avoid time-bar;
(j)moving for interim orders for residence or interdict or interim orders under section 11 of the 1995 Act, including (where not already done) initiating or entering proceedings in which such orders may be sought;
(k)opposing interim orders of any kind;
(l)moving for or opposing an exclusion order;
(m)moving for or opposing an order for a power of arrest;
(n)moving for or opposing a motion for variation of an order relating to parental responsibilities or parental rights under section 11 of the 1995 Act(1);
(o)opposing a freeing order for adoption or an application by a local authority for a parental responsibilities order under section 86 of the 1995 Act;
(p)obtaining reports on residence orders or contact orders within the meaning of section 11(2)(c) and (d) of the 1995 Act when the court so orders;
(q)appearing at a Child Welfare Hearing which has been fixed under rule 33.22A of the Ordinary Cause Rules 1993(2);
(r)obtaining warrant for inhibition on the dependence or arrestment on the dependence, including (where not already done) initiating proceedings containing an application for such warrant, and taking steps to have the warrant executed;
(s)initiating proceedings for suspension or suspension and interdict;
(t)initiating or opposing appellate proceedings other than such proceedings in the House of Lords or the Judicial Committee of the Privy Council;
(u)initiating such proceedings as are necessary to enable an application to be made for interim liberation in an immigration matter; and
(v)initiating an application to the Court of Session which is certified by the Scottish Ministers to be a Convention application as defined in regulation 45 below.
(3) Where a solicitor undertakes work under paragraphs (1)(a) and (2) above, the solicitor shall, within 28 days of commencement of the work, both notify the Board of such commencement and, if an application for legal aid has not already been submitted, submit an application for legal aid; and failure to do so shall exclude that work from any legal aid that may be made available.
(4) Where the Board is satisfied in accordance with paragraph (1)(b) above that steps require to be taken as a matter of special urgency to protect the applicant’s position–
(a)the Board shall so certify and may specify that the steps to be taken shall be limited to such work, or such purposes, or such period, or be subject to such conditions, all as it shall consider appropriate in the circumstances; and
(b)the solicitor shall, if an application for legal aid has not already been submitted, submit an application for legal aid within 28 days of commencement of the urgent work and failure to do so shall exclude that work from any legal aid that may be made available.
(5) Where work is carried out by a solicitor in the circumstances described in paragraph (1) above–
(a)Section 17 (contributions and payments out of property recovered) of the Act shall be modified so that –
(i)a legally assisted person for the purposes of that section includes a person for whom such work is carried out; and
(ii)the requirements of that section apply in respect of specially urgent work undertaken before an application for legal aid made in terms of section 14 of the Act is determined;
(b)regulation 5(1)(b)(statement to accompany application) above shall be modified so that the statement for the purpose of that sub-paragraph shall be –
(i)signed by the applicant; or
(ii)where the Board is satisfied that there is a good reason why the applicant has not signed the statement, by the solicitor; and
(c)regulations 21 (prior approval of the Board required for employment of counsel etc.), 39 (recovery of expenses) and 40 (recovery of payments out of property recovered or preserved) below shall be modified so that a person in receipt of legal aid for the purposes of those regulations includes a person for whom such work is carried out.
(6) Where work is carried out by a solicitor in the circumstances described in paragraph (1), and an application for legal aid made in terms of section 14 of the Act is subsequently refused–
(a)section 4(2)(a) of the Act shall be modified so that there shall be paid out of the Fund–
(i)where the Board is satisfied as to the factors in paragraph (7), payments to meet such sums as the Board approves; or
(ii)where the Board is not satisfied as to the factors in paragraph (7), any contribution paid by, or expenses awarded to, a person for whom a solicitor has undertaken specially urgent work; and
(b)section 4(3)(b) of the Act shall be modified so that there shall be paid into the Fund any sum recovered under an award of a court or an agreement as to expenses in any proceedings in favour of the person for whom that work is carried out.
(7) The factors referred to in paragraph (6)(a) above are that the Board shall be satisfied that–
(a)the solicitor had reasonable grounds for believing, on the information available at the time the work was done, that the applicant would be eligible for legal aid in terms of section 15 of the Act; and
(b)the work was actually, necessarily and reasonably done, due regard being had to economy.
Section 11 was amended by the European Communities Act (Matrimonial Jurisdiction and Judgments) (Scotland) Regulations 2001 (S.S.I. 2001/ 36).
The Ordinary Cause Rules 1993 are contained in Schedule 1 to the Sheriff Courts (Scotland) Act 1907 (c. 51); Schedule 1 was substituted by S.I. 1993/1956 and rule 33.22A was inserted by S.I. 1996/2167.