Legal Aid and Solicitors (Scotland), Act 1949
| Year | 1949 |
Legal Aid and Solicitors (Scotland), Act 1949
(12, 13 & 14 Geo. 6) CHAPTER 63
An Act to make legal aid and advice in Scotland more readily available for persons of small or moderate means and to enable the cost of legal aid or advice for such persons to be defrayed wholly or partly out of moneys provided by Parliament; to establish a Law Society of Scotland; to amend the law relating to solicitors in Scotland; and for purposes connected with the matters aforesaid.
[30th July 1949]
Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—
Part I
Legal Aid and Legal Advice
Legal Aid
1 Scope and general conditions of legal aid.
(1) This and the three next following sections provide for, and (save as hereinafter mentioned) relate only to legal aid in connection with proceedings before courts and tribunals in Scotland and before the House of Lords on appeal from the Court of Session.
(2) Unless and until regulations otherwise provide, the proceedings in connection with which legal aid may be given are any proceedings of a description mentioned in Part I of the First Schedule to this Act, except proceedings mentioned in Part II of that Schedule.
(3) Subject to the provisions of this section, the proceedings in connection with which legal aid may be given may be varied by regulations, and the regulations may describe the proceedings to be included or excluded by reference to the court or tribunal, to the issues involved, to the capacity in which the person requiring legal aid is concerned, or otherwise.
(4) Regulations made for the purpose of the last foregoing subsection—
(a ) shall not provide for legal aid being given in connection with proceedings before any court or tribunal before which persons have no right and are not normally allowed to be heard by counsel or a solicitor; and
(b ) shall not come into force unless or until approved by resolution of each House of Parliament.
(5) Legal aid shall consist of representation, on the terms provided for by this Act, by a solicitor and so far as necessary by counsel (including all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a settlement to prevent or bring to an end any proceedings).
(6) A person shall not be given legal aid in connection with any civil proceedings or in connection with any criminal proceedings by way of appeal against conviction or sentence (whether in summary proceedings or in proceedings on indictment) unless he shows that he has a probabilis causa litigandi, and may also be refused legal aid in any such proceedings as aforesaid if it appears unreasonable that he should receive it in the particular circumstances of the case.
(7) Save as expressly provided by or under this Part of this Act, the fact that the services of counsel or a solicitor are given by way of legal aid shall not affect the relationship between or the rights of counsel, solicitor and client.
2 Financial conditions of legal aid.
(1) Subject to this Part of this Act, legal aid shall be available for any person whose disposable income does not exceed four hundred and twenty pounds a year:
Provided that a person may be refused legal aid if he has a disposable capital of more than five hundred pounds and it appears that he can afford to proceed without legal aid.
(2) Notwithstanding the provisions of the foregoing subsection, legal aid shall be available in connection with criminal proceedings to an accused person without inquiry into his resources—
(a ) where the proceedings are taken under solemn procedure, until, after being brought before a magistrate for examination on declaration, he is admitted to bail or committed until liberated in due course of law, or
(b ) where the proceedings are taken under summary procedure, until the conclusion of the first diet at which he is called upon to plead.
(3) Where a person receives legal aid in connection with any proceedings—
(a ) the expenses incurred in connection with the proceedings, so far as they would ordinarily be paid in the first instance by or on behalf of the solicitor acting for him, shall be so paid;
(b ) his solicitor and counsel shall not take any payment in respect of the legal aid except such payment as is directed by this Part of this Act to be made out of the legal aid fund;
(c ) he may be required to make a contribution to the legal aid fund in respect of the sums payable thereout on his account;
(d ) any sums recovered by virtue of an award of expenses or of an agreement as to expenses in his favour with respect to the proceedings shall be paid to the legal aid fund;
(e ) his liability by virtue of an award of expenses against him with respect to the proceedings shall not exceed the amount (if any) which in the opinion of the court or tribunal making the award is a reasonable one for him to pay having regard to all the circumstances, including the means and the conduct in connection with the dispute of all parties.
(4) It shall be competent, at any time within such period as may be prescribed after the making of such an award of expenses as is mentioned in paragraph (e ) of the last foregoing subsection, for any party concerned in such award to apply to the court or tribunal by which the award was made for a re-assessment of the amount of the award on the ground that since the award was made there has been a relevant change of circumstances, and on such application the court or tribunal may re-assess the amount of the award as seems to them proper.
(5) For the purposes of any inquiry under this section as to the means of a person who has been found liable in expenses, his dwelling-house, wearing apparel and household furniture and the tools and implements of his trade or profession shall be left out of account except to such extent as may be prescribed, and except as aforesaid, shall not, in any part of the United Kingdom, be subject to diligence in execution of the award.
3 Contributions from assisted persons and payments out of property recovered.
(1) A person's contribution to the legal aid fund in respect of any proceedings may include—
(a ) a contribution in respect of income not greater than half the amount (if any) by which his disposable income exceeds one hundred and fifty-six pounds a year; and
(b ) a contribution in respect of capital not greater than the amount (if any) by which his disposable capital exceeds seventy-five pounds.
(2) A person may be required to make any contribution to the legal aid fund in one sum or by instalments.
(3) If the total contribution to the legal aid fund made by a person in respect of any proceedings is more than the net liability of that fund on his account, the excess shall be repaid to him.
(4) Except so far as regulations otherwise provide, any sums remaining unpaid on account of a person's contribution to the legal aid fund in respect of any proceedings and, if the total contribution is less than the net liability of that fund on his account, a sum equal to the deficiency shall be paid, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him in the proceedings.
(5) The reference in the last foregoing subsection to property recovered or preserved for any person shall include his rights under any settlement arrived at to prevent or bring to an end the proceedings and any sums recovered by virtue of an award of expenses made in his favour in the proceedings (not being sums payable into the legal aid fund under the last foregoing section).
(6) Nothing in subsection (4) of this section shall prevent a court allowing any damages or expenses to be set off against other damages or expenses.
(7) References in this section to the net liability of the legal aid fund on any person's account in relation to any proceedings refer to the aggregate amount of the sums paid or payable out of that fund on his account in respect of those proceedings to any solicitor and not recouped to that fund by sums which are recovered by virtue of an award of expenses or of an agreement as to expenses in his favour with respect to those proceedings.
4 Assessment of disposable capital and income and of maximum contribution.
(1) References in this Act to a person's disposable income or disposable capital shall be taken as referring to the rate of his income or the amount of his capital after making—
(a ) such deductions as may be prescribed in respect of the maintenance of dependants, interest on loans, income tax, rates, rent and other matters for which the person in question must or reasonably may provide; and
(b ) such further allowances as may be prescribed to take account of the nature of his resources.
(2) Regulations may make provision as to the manner in which the rate of a person's income and the amount of his capital are to be computed for the purposes of the foregoing subsection, and in particular for determining whether any resources are to be treated as income or capital and for taking into account fluctuations of income.
(3) The regulations shall include provision for securing that the resources of a person seeking or receiving legal aid shall be treated as not including the subject matter of the dispute.
(4) Except in so far as the regulations otherwise provide, any resources of a person's wife or husband shall be treated for the purposes of this section as that person's resources, and the...
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