The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020
| Jurisdiction | Scotland |
| Citation | SSI 2020/191 |
| Year | 2020 |
2020 No. 191
Legal Aid And Advice
The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020
Made 26th June 2020
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 9, 12(3), 33(2), (3) and (3A), and 36(1), (2)(a) and (g) of the Legal Aid (Scotland) Act 19861and all other powers enabling them to do so.
Citation and commencement
1.—(1) These Regulations may be cited as the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020.
(2) With the exception of regulation 4, these Regulations come into force on 1 July 2020.
(3) Regulation 4 comes into force on 5 August 2020.
Amendment of the Civil Legal Aid (Scotland) (Fees) Regulations 1989
2.—(1) Chapter II (Sheriff Court Civil Fees (Defended)) of Schedule 6 of the Civil Legal Aid (Scotland) (Fees) Regulations 19892is amended as follows.
(2) For paragraph 24, substitute—
“24. Except as provided for by paragraph 25 or where otherwise prescribed, no fee is allowable unless the work for which the fee is payable has been completed in its entirety.”.
(3) After paragraph 24 insert—
“25. (1) During the emergency period, where a solicitor submits a claim for payment in such form as the Board may require for work which has been commenced but not yet completed in its entirety, the Board may make payment to account of the amount of the fee which would be payable in accordance with the table in this chapter if that work had been completed in its entirety, subject to the following conditions:—
(a)
(a) a payment made under this paragraph shall be an interim payment only and the fee payable to the solicitor, if any, in respect of the work to which such interim payment relates shall be assessed upon receipt of a claim by the solicitor for fees payable in accordance with this chapter;
(b)
(b) when assessing the fee payable to a solicitor in respect of legal aid the Board may have regard to any interim payment, or payments, made under this paragraph in relation to the same matter and may reduce the amount of the fee payable to the solicitor accordingly;
(c)
(c) where interim payment has been made in accordance with this paragraph but the payment made exceeds the fee payable to the solicitor in respect of the work carried out under this chapter, the excess shall be repaid by the solicitor to the Fund.
(2) For the purposes of this chapter “emergency period” is the period beginning on 1 July 2020 and ending on the date on which Part 9 of schedule 4 of the Coronavirus (Scotland) Act 20203expires in accordance with section 12 of that Act.”.
Amendment of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989
3.—(1) Schedule 2 (fees of counsel) of the Criminal Legal Aid (Scotland) (Fees) Regulations 19894is amended as follows.
(2) In paragraph 13(d) after “concluded” insert “, unless claimed during the emergency period”.
(3) In paragraph 22 (interpretation) after the entry relating to “documentation” insert—
““emergency period” means the period beginning on 1 July 2020 and ending on the date on which Part 9 of schedule 4 of the Coronavirus (Scotland) Act 20205expires in accordance with section 12 of that Act;”.
Amendment of the Advice and Assistance (Scotland) Regulations 1996
4. After regulation 16 (payment of fees and outlays from property recovered or preserved) of the Advice and Assistance (Scotland) Regulations 19966insert—
“Interim payment of fees and outlays during the emergency period
16A. (1) This regulation applies where—
(a)
(a) a claim is made for interim payment of fees or outlays in accordance with section 33(6)(a)(ii) and (b) of the Act, as modified by the Coronavirus (Scotland) Act 20207;
(b)
(b) the claim is made in such form and complying with such terms and containing such information as the Board may require for assessment purposes; and
(b)
(b) the claim is made during the emergency period.
(2) For the purposes of this regulation “emergency period” means the period beginning on 5 August 2020 and ending on the date on which Part 9 of schedule 4 of the Coronavirus (Scotland) Act 20208expires in accordance with section 12 of that Act.
(3) In relation to a claim for interim payment made in accordance with this regulation, the Board may disapply the requirement created by section 12(3)(c) of the Act that, before recourse to the Fund, fees or outlays shall be paid to the solicitor out of any property which is recovered or preserved for the client, in relation to the whole or any part of any such property.
(4) For the avoidance of doubt, except where otherwise provided section 12 of the Act continues to apply to all other fees or outlays.
(5) Paragraph (6) applies where the Board has made an interim payment in accordance with this regulation to a solicitor who provided advice and assistance to a person, and at any time prior to or after such payment that person or any solicitor acting on that person’s behalf has, in respect of the same matter for which advice and assistance was provided–
(a)
(a) received any expenses which (by virtue of a judgment or order of a court or an agreement or otherwise) are payable to that person; or
(b)
(b) recovered or preserved any property (of whatever nature and wherever situated), including that person’s rights under any settlement arrived at in connection with the matter in order to avoid or bring to an end any proceedings.
(6) Where this paragraph applies, the Board may recover any sum paid out of the Fund to the solicitor in respect of the advice and assistance so given, from either—
(a)
(a) the solicitor to whom the interim payment from the Fund was made; or
(b)
(b) the person to whom the advice and assistance was provided.
(7) In any case to which paragraph (6) applies the sum recoverable by the Board shall be the amount of the interim payment made, less any amount which would have been properly payable by way of fees and outlays under section 12(3)(d) of the Act, taking into account the expenses or property referred to in paragraph (5).”
Amendment of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999
5.—(1) Regulation 4 (fixed payments allowable to solicitors) of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 19999is amended as follows.
(2) In paragraph (5B), for “The amount payable” substitute “Except where paragraph (5C) applies, the amount payable”.
(3) After paragraph (5B) insert—
“5C. This paragraph applies where during the emergency period the solicitor referred to in...
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