Civil Legal Aid
Is Civil Legal Aid provision in Scotland at crisis point?
Following anecdotal evidence of dissatisfaction with the civil legal aid system, the Society made the decision at the beginning of 2007 to undertake a more formal evidence-gathering exercise.
This was reinforced by a motion raised by the Family Law Association at the Society's AGM on 9th March 2007, calling for the Society to urge the Executive to carry out an immediate review of solicitors' rates and to effect an "actual and significant increase in fees".
The Society agreed the motion on the understanding that practitioners would have to submit their views on the current system and its perceived failings so that the Society could make evidence-based proposals for reform.
To that end, the Society created a questionnaire comprising 14 questions (one of which had two parts). It was designed to be completed online but a printable version was also created to allow respondents to post, fax or email their responses. The questionnaire was published on the Society's website and advertised in the Ezine and the Journal. It was also sent by email directly to firms registered to carry out civil legal aid.
To view the research results, click here.
The Civil Legal Aid for Defamation or Verbal Injury Proceedings (Scotland) Direction 2007
In accordance with section 14(1C) and (1D) of the Legal Aid (Scotland) Act 1986, Scottish Ministers have issued a Direction to the Scottish Legal Aid Board ("the Board") for the granting of civil legal aid in exceptional cases concerning defamation or verbal injury cases.
Where a Direction is issued the Board must comply with it. The Direction can be seen by clicking here.
Civil legal aid is generally not available for defamation and verbal injury proceedings and the Direction will not remove that general exception. The Direction sets out additional criteria, on which the Board is required to satisfy itself when considering an application for civil legal aid, for defamation and verbal injury actions. These criteria are in addition to the normal statutory tests of probable cause, reasonableness and financial eligibility.
These additional criteria are that the case, to which the application refers, must have a wider public interest or convincing evidence that there are other exceptional circumstances meaning, that without public funding for representation, it would be practically impossible for the applicant to bring or defend the proceedings leading to obvious unfairness.
In considering the exceptional circumstances the Board is also required to be satisfied that the degree of exceptionality is the same or approximately the same as the facts found in the case of Steel and Morris v the United Kingdom ([2005] ECHR 103).
