This is the third of a series of posts on practical aspects of judicial review practice and procedure. This part looks at some points which require to be considered in connection with legal aid funding of judicial review cases.

This is the third of a series of posts on practical aspects of judicial review practice and procedure.  This part looks at some points which require to be considered in connection with legal aid funding of judicial review cases.

 

Part 3: Legal Aid

 

Who will be funding the litigation?  In cases involving asylum, housing, immigration, prisons, or social security benefits, the client will almost certainly be applying for legal aid.  This can cause difficulties in bringing judicial review proceedings dues to delays in obtaining information and obtaining approval from the Scottish Legal Aid Board (SLAB).  Apart from ensuring that the client is financially eligible and that all the necessary information about the issues and merits of the proposed judicial review is provided to SLAB, there are three particular issues to be aware of in relation to legal aid:

 

Probable cause and reasonableness

SLAB require to be satisfied that there is an arguable case (probable cause) and that it is reasonable for legal aid to be granted.  They also require to be satisfied that it is necessary for judicial review proceedings to be brought.  SLAB will expect to be told what steps have been taken to resolve the matter extra-judicially.  A legal aid application may be refused if no steps have been taken, or they have not been told that this has been done.  Account however will be taken of the time limit for bringing proceedings and the circumstances applicable in considering that issue.  It may be necessary to obtain advice from counsel on whether or not there is probable cause and on the prospects of success.  This can also slow down efforts to get matters into court within the time limit (see below), so it is another point to bear in mind when preparing to bring judicial review proceedings.  SLAB publishes handbooks which describe what information is required and how it deals with applications.  The Civil Legal Aid handbook is online and is searchable, see:

 http://www.slab.org.uk/handbooks/Civil%20handbook/wwhelp/wwhimpl/js/html/wwhelp.htm#href=Civil%20Legal%20Assistance%20Handbook%20front%20page%20for%20restructure.html

Urgency / time limits

There is generally speaking a three-month time limit for bringing judicial review proceedings (discussed further in Part 4).  This makes it very important to gather in all the necessary information and documents to support an application for legal aid as soon as possible.  The Court of Session rules allow for the possibility of a sist for legal aid, but any sist is limited to twenty-eight days.  Further applications to sist for further periods of twenty-eight days can be made, but risk being refused if the Court does not consider it to be reasonable.  In some situations, it might be necessary to apply for Special Urgency cover.

Representative interests

There can be a problem getting legal aid in cases where the issues raised are of concern to a number of individuals (joint interest), and there will not be any direct personal, financial or property interest that requires to be protected.  In these circumstances the Scottish Legal Aid Board can refuse an application for legal aid on the grounds that the applicant will not suffer any serious prejudice, and that it is not reasonable to grant legal aid as other persons (individually or collectively) should be expected to bring proceedings to protect that joint interest and therefore it is not reasonable for legal aid to be provided.  Examples of cases given by SLAB where an applicant will not suffer serious prejudice include closure of a school, community centre, swimming pool, or other cultural or leisure institution. 

A petitioner may also seek to judicially review a decision of SLAB refusing legal aid or advice and assistance.

 

It should be noted that SLAB highlight a number of times in the Civil Legal Aid Handbook the problems caused by the failure to provide it with sufficient information to allow them to consider the application properly.  This suggests that it is a more frequent occurrence than should be the case.  Similarly, when counsel is being instructed for either an Opinion or to draft a petition, the Advice and Assistance or the Legal Aid reference is frequently missing from the instructions.  This inevitably leads to this information needing to be chased up, taking up time and potentially a source of delay.

 

 

Legislative provisions

Legal Aid (Scotland) Act 1986, Section 14

Act of Sederunt (Rules of the Court of Session 1994) 1994, Schedule 2, Rule 58.4(5)(h)

Civil Legal Aid (Scotland) Regulations 2002, Regulations 5, 15 and 18

 

Leading cases

K v Scottish Legal Aid Board, 1989 SLT 617

Venter v Scottish Legal Aid Board, 1993 SLT 147

Scottish Legal Aid Board's Reference (No.1 of 1995), 1995 SCLR 760

McTear v Scottish Legal Aid Board, 1997 SLT 108

Donaldson v Scottish Legal Aid Board, 2014 SC 689

Beggs v Scottish Legal Aid Board, [2016] CSOH 90; 2016 GWD 21-365