FREE CHAPTER from ‘Funding Personal Injury Litigation in Scotland’ by Robert Milligan QC


3.1 Introduction

A comprehensive analysis of civil legal aid is well beyond the scope of this book, but there are a number of key points that should be recognised.

The first is that legal aid remains an important option for many forms of civil litigation, including family actions and certain clinical negligence actions, particularly those involving injuries caused during birth. The position in this respect is very different from England and Wales.

The second is that legal aid rates remain far below commercial market rates. Legal aid is attractive for lawyers taking on difficult cases with a significant risk that the claim will fail but far less attractive in cases that are likely to succeed. On the other hand, from a pursuer’s perspective, the attraction lies in the form of funding that does not involve the loss of any damages (although the Scottish Legal Aid Board may require a financial contribution, depending on the pursuer’s resources). This can create a serious conflict of interest for the lawyer.

The third is that where a lawyer takes on a case using legal aid, there may still be the option of recovering expenses from the other side instead of making a claim on the fund. This can often overcome the second point noted above. If legal aid is a safety net in the event of failure, there is still the possibility of recovery at commercial market rates, at least in relation to judicially recoverable fees.

The fourth is that legal aid takes a number of forms. Advice and Assistance covers office-based work and does not extend to court work. It is defined in section 6 of the Legal Aid (Scotland) Act 1986 (“the 1986 Act”) as follows:

“ “Advice and assistance” means any of the following

(a) oral or written advice provided to a person by a solicitor (or, where 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, where 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.”

Court proceedings are covered by Civil Legal Aid. There is also Assistance by Way of Representation although that is not relevant here.

The distinction between the various forms of civil legal aid has been criticised by the Law Society of Scotland which has argued for a simplified scheme involving a single continuing grant (see Legal Assistance in Scotland Fit for The 21st Century Law Society of Scotland Recommendations May 2015). However, Rethinking Legal Aid An Independent Strategic Review by Martyn Evan in February 2018 was generally positive about the current position and there is little prospect of imminent reform. It is interesting to note that spending on legal aid has fallen from a peak of £161M in 2010/11 to £136M in 2016/17 and is anticipated to continue falling. Of that £136M, only £40.9M was spent on civil legal assistance which would again suggest that this is not a priority for the Scottish Government.

Financial eligibility

In terms of section 15 of the 1986 Act there is an assessment of both capital and income, with the assets of a co-habiting partner also taken into account. For Advice and Assistance the capital threshold is £1,716. For Civil Legal Aid, the maximum capital to qualify for an award is £13,017. If the applicant and their partner has less than that in capital, there is a test of disposable income. The threshold for Advice and Assistance is disposable income of £12,740 and for Civil Legal Aid it is £26,239.

Where the applicant has a disposable income of more than £3,521, there is a sliding scale of contributions. Between £3,522 and £11,540, the contribution is 33%. Between £11,541 and £15,743 the contribution is 50%. Between £15,744 and £26,239 the contribution is 100%. The main benefit to the applicant when the contribution is 100% is that the solicitor will only be able to charge legal aid rates as opposed to normal commercial rates. In all cases

Probable cause

Section 14 of the 1986 Act provides as follows:

14. (1) Subject to section 15 of this Act and to subsections (1F) and (2) below, civil legal aid shall be available to a person if, on an application made to the Board

(a) the Board is satisfied that he has a probabilis causa litigandi; and

(b) it appears to the Board that it is reasonable in the particular circumstances of the case that he should receive legal aid.

This means that assuming the pursuer is financially eligible for legal aid, they still need to show probabilis causa litigandi or probable cause. This is not the same thing as a likelihood of success on a percentage basis. Probabilis causa is defined in the Taylor Report as “sufficient grounds for commencing legal action”.

In its advice to legal aid applicants updated June 2018 the Scottish Legal Aid Board gave the following examples of when it would not be reasonable in the particular circumstances of a case to grant legal aid: “it may not be reasonable to grant legal aid if the person you are trying to sue has no money, your case will cost much more than it is worth, it looks unlikely that you will succeed, you are using the wrong court, or if you have not fully considered other ways of sorting out the problem, before you take court action.”