| OUTER HOUSE, COURT OF SESSION |
| | [2013] CSOH 160 |
| | OPINION OF LORD DOHERTY in the Petition of M Pursuer; for Enforcement of a residence order in terms of the Family Law Act 1986, s. 29 ________________ |
Pursuer: McAlpine, Lindsays Solicitors
Defender: Murray; Hughes Walker
3 October 2013
Introduction
[1] The petitioner (M) married the respondent (P) in 2005. They were divorced in 2007. They have been involved in litigation over residence of their two children since 2006. On 28 April 2008 a shared residence order was pronounced of consent at Basingstoke County Court. Subsequent orders for shared residence were made at Basingstoke County Court on 5 November 2009 and at Portsmouth County Court on 25 February 2011 and 15 February 2013. On 14 May 2013 the Portsmouth County Court varied the shared residence order, ordering that the children reside with the petitioner, that the respondent return the children to the jurisdiction of the court, and that she deliver them to the petitioner. It also prohibited her from removing the children from England and Wales. The petitioner avers that the respondent acted in breach of the orders of 14 May 2013 by removing the children from England (where both she and the petitioner had their homes) and by taking them to Scotland. The matter came before me on 31 May 2013. The petitioner sought enforcement of the residence order granted on 14 May 2013. After hearing argument and considering affidavits I continued the hearing until 7 June 2013 so that the respondent could have an opportunity to make application to Portsmouth County Court to seek to vary the orders that had been pronounced there. I indicated that in the event of no variation being granted I would be likely to grant the petition on that date. At the continued hearing on 7 June 2013 I was informed that the children had been delivered to the petitioner, and that in those circumstances it was unnecessary to proceed with the petition. Counsel for the petitioner asked that the petition be dismissed and that the respondent be found liable to the petitioner in the expenses of the proceedings. Counsel for the respondent did not oppose the motion for expenses. However, he moved that they be modified to nil in terms of the Legal Aid (Scotland) Act 1986, s.18(2).
[2] I was informed that the respondent did not have a legal aid certificate, but that specially urgent work had been carried out on her behalf in terms the Civil Legal Aid (Scotland) Regulations 2002, reg.18. It was not made clear if the work fell within the circumstances described in reg.18(1)(a), or whether reg.18(1)(b) applied; but clarification of that matter is not in fact necessary for, or material to, the determination of the motion.
[3] Counsel for the respondent submitted that by virtue of the specially urgent work done on her behalf the respondent was a "legally assisted person" within the meaning of that expression in s.18(2) of the 1986 Act. Counsel for the petitioner disputed that. At that stage neither counsel was in a position to make considered submissions or to produce authorities. As the matter seemed to me to raise a question of statutory interpretation of some general importance I continued the motion to enable the parties, and the Scottish Legal Aid Board ("SLAB") if so advised, to make submissions in writing.
SLAB
[4] By email dated 20 June 2013 the solicitor to SLAB wrote to the clerk of court in the following terms:
"So far as your query is concerned the relevant guidance can be found in the Civil Legal Assistance Handbook, Part IV, Chapter 6:12 (sic)which states:
'It is important to note that work done under regulation 18(1)(a) or (b) is not a grant of legal aid. You must still apply for, and be granted, legal aid before the work is covered. We may grant legal aid if we were satisfied that there was probable cause at the time the work was done and that it is reasonable to make legal aid available. If legal aid is not subsequently granted, arrangements exist that afford a substantial measure of protection to solicitors, but not to applicants. Thus, for example, an applicant is not entitled to the benefit of modification of expenses if legal aid is not subsequently granted, and it is important to bear this in mind when, for example, raising proceedings about to become time-barred. Where work is being done solely by reason of the provisions of regulation 18, the applicant is not entitled to be described as an assisted person.'
There is no grant of civil legal aid in place at the present time, and so the applicant is not an assisted person for modification purposes."
[5] On 3 July 2013 the respondent's application for civil legal aid was refused by SLAB. On 5 July 2013 I received written submissions prepared by counsel for the petitioner and written submissions prepared by counsel for the respondent.
The relevant statutory provisions
[6] The Legal Aid (Scotland) Act 1986 provides:
" Part I
SCOTTISH LEGAL AID BOARD
...
The Fund
Scottish Legal Aid Fund
4. (1) The Board shall establish and maintain a fund to be known as the Scottish Legal Aid Fund (in this Act referred to as "the Fund").
(2) There shall be paid out of the Fund-
(a) subject to section 4A(13), such sums as are, by virtue of this Act or any regulations made thereunder, due out of the Fund to any solicitor or counsel or registered organisation in respect of fees and outlays properly incurred or in respect of payments made in accordance with regulations made under section 33(3A) of this Act in connection with the provision, in accordance with this Act, of legal aid or advice and assistance;
...
(b) expenses awarded to any person under section 19 of this Act; and
(c) such other payments as the Secretary of State may determine.
(3) There shall be paid into the Fund-
(a) any contribution payable to the Fund by any person in pursuance of section 17 of this Act.
...
(ac) any sums recovered from a person who is receiving or has been in receipt of advice and assistance, civil legal aid or criminal legal aid under section 24, but who has available to him rights and facilities making it unnecessary for him to take advantage of the provisions of this Act.
...
(b) any sum recovered under an award of a court or an agreement as to expenses in any proceedings in favour of any party who is in receipt of civil legal aid;
(c) any sum which is to be paid in accordance with section 17 of this Act out of property recovered or preserved for any party to any proceedings who is in receipt of civil legal aid;
...
(e) such other receipts of the Board as the Secretary of State may determine.
...
PART III
CIVIL LEGAL AID
13. - Meaning of "civil legal aid"
(1) This Part of this Act applies to civil legal aid.
(2) In this Act, "civil legal aid" means representation by a solicitor and, where appropriate, by counsel in any proceedings mentioned in Part I of Schedule 2 to this Act, on the terms provided for in this Act, and includes all such assistance as is usually given by solicitor or counsel in the steps preliminary to or incidental to proceedings, or in arriving at or giving effect to a settlement to prevent them or bring them to an end.
(3) Subject to sections 14 and 15 of this Act and to regulations made under this section, civil legal aid shall be available in connection with any proceedings mentioned in subsection (2) above, except insofar as Part II of Schedule 2 to this Act otherwise provides...
...
14. - Availability of civil legal aid
(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.
....
15. - Financial conditions.
(1) A person shall be eligible for civil legal aid if his disposable income does not exceed £26,239 a year.
(2) A person may be refused civil legal aid if-
(a) his disposable capital exceeds £13,017; and
(b) it appears to the Board that he can afford to proceed without legal aid...
...
Expenses
16. - Expenses in favour of certain assisted persons
...
(2) In sections 17 to 20 of this Act -
..."legally assisted person" means a person in receipt of civil legal aid in the proceedings in question or a person in receipt of assistance by way of representation in any proceedings to which this Part applies.
17. - Contributions, and payments out of property recovered.
(1) Legally assisted persons may be required by the Board to contribute to the Fund in accordance with this section in respect of any proceedings in connection with which they are granted civil legal aid.
...
(2A) Except in so far as regulations made under this section otherwise provide, any sum of money recovered under an award of or an agreement as to expenses in favour of any party in any proceedings in respect of which he is or has been in receipt of civil legal aid shall be paid to the Board.
(2B) Except in so far as regulations made under this section otherwise provide, where, in any proceedings, there is a net liability of the Fund on the account of any party, the amount of that liability shall be paid to the Board by that party, in priority to any other debts, out of any property (wherever situate) which is recovered or preserved for him-
(a) in the proceedings; or
(b) under any settlement to avoid them or to bring them to an end...
18. - Expenses of unassisted party.
...
(2) The liability of a legally assisted person under an award of expenses in any 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 of all the parties and their conduct in connection with the dispute.
...
PART VI
MISCELLANEOUS
...
Solicitors and counsel
33. - Fees and outlays of solicitors and counsel.
(1) Subject to subsections (3A) and (3B) below any solicitor or counsel who acts for any person by providing legal aid or advice and assistance under this Act shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by him in so acting.
...
(2) The Secretary of State may, by regulations made under this section, make such provision as seems to him appropriate in respect of the fees and outlays of solicitors and counsel ...
(a) acting in any proceedings for a person to whom legal aid has been made available; ...
...
Regulations and rules of court
36. - Regulations.
(1) The Secretary of State may make such regulations under this section as appear to him necessary or desirable for giving effect to, or for preventing abuses of, this Act; and regulations made under this section may make different provision-
(a) in relation to legal aid and to advice and assistance respectively; and
(b) for different cases or classes of case.
(2) Without prejudice to subsection (1) above or to any other provision of this Act authorising the making of regulations, regulations made under this section may-
(a) make provision as to the exercise by the Board of its functions under this Act;
...
(d) make provision as to the manner of making applications for legal aid or advice and assistance under this Act and the time when such applications may be made and disposed of;
...
(g) make provision in connection with the recovery of sums due to the Fund and making effective the priorities conferred by this Act on the payment of such sums out of awards of expenses or property recovered or preserved for a person receiving legal aid, including-
(i) make provision in connection with the enforcement (by whatever means) for the benefit of the Fund of any award of expenses or any agreement as to expenses in favour of a person who has received legal aid...
(h) modify any provision of this Act so far as appears to the Secretary of State necessary to meet any of the special circumstances mentioned in subsection (3) below.
...
(3) The special circumstances referred to in subsection (2)(h) above are where a person seeking or receiving legal aid or advice and assistance-
...
(e) seeks legal aid or advice and assistance in a matter of special urgency;
...
41. Interpretation.
In this Act, unless the context otherwise requires-
...
"civil legal aid" has the meaning given to it in section 13(2) of this Act;
...
"legal aid" means civil legal aid, criminal legal aid, children's legal aid or legal aid given in connection with proceedings for contempt of court; ..."
[7] The Civil Legal Aid (Scotland) Regulations 2002 (SSI 2002/494) provide:
"The Scottish Ministers, in exercise of the powers conferred by sections 17(2B), 19(4), 20(4), 36(1), (2)(a) and (c) to (h), (3)(bb), (e) and (f) and (4), 37(1) and (3) and 42 of the Legal Aid (Scotland) Act 1986 and of all other powers enabling them in that behalf, hereby make the following Regulations:
PART 1
GENERAL
....
2. - Interpretation
(1) In these Regulations-
"the Act" means the Legal Aid (Scotland) Act 1986;
...
"assisted person" means a person in receipt of legal aid in the proceedings in question;
...
"legal aid" means "civil legal aid" within the meaning of section 13(2) of the Act;
...
PART IV
DETERMINATION OF APPLICATIONS
...
18. - Legal aid in matters of special urgency
(1) The Board may make legal aid available for specially urgent work undertaken before an application is determined, if it is satisfied that at the time such work was undertaken there was probabilis causa litigandi and it appears to the Board that it is reasonable in the particular circumstances of the case that the applicant should receive legal aid, in either of the following circumstances:-
(a) where any step specified in paragraph (2) below has required to be taken as a matter of special urgency to protect the applicant's position; or
(b) in any other circumstances where-
(i) the Board is satisfied on application that steps require to be taken as a matter of special urgency to protect the applicant's position; and
(ii) paragraphs (3A) and (3B) do not apply...
...
(3) Where a solicitor undertakes work under paragraphs (1)(a) and (2) above, the solicitor shall, within 28 days of commencement of the work, both notify the Board of such commencement and, if an application for legal aid has not already been submitted, submit an application for legal aid; and failure to do so shall exclude that work from any legal aid that may be made available.
(3A) This paragraph applies where-
(a) at the time the Board receives an application under paragraph (1)(b)-
(i) an application for legal aid by the applicant in relation to the same proceedings has been refused or treated as abandoned; or
(ii) the Board has ceased to make legal aid in respect of the same proceedings available to the applicant;
(b) the Board has given the applicant an opportunity to show that there is a realistic prospect that legal aid will be granted following an application for review or a further application; and
(c) the Board is not satisfied that the applicant has so shown.
(3B) This paragraph applies where-
(a) the Board, on receipt of an application under paragraph (1)(b), has called on the applicant to provide the Board with sufficient information to enable the Board to determine whether prima facie the conditions mentioned in section 14(1) of the Act are met;
(b) the Board is satisfied either-
(i) that the applicant has had sufficient opportunity to provide the information called for; or
(ii) that the applicant would have had sufficient opportunity to provide the information called for but for undue delay on the part of the solicitor in submitting the application under paragraph (1)(b); and
(c) the Board is not satisfied that prima facie the conditions mentioned in section 14(1) of the Act are met.
(4) Where the Board is satisfied in accordance with paragraph (1)(b) above that steps require to be taken as a matter of special urgency to protect the applicant's position and that paragraphs (3A) and (3B) do not apply -
(a) the Board shall so certify and may specify that the steps to be taken shall be limited to such work, or such purposes, or such period, or be subject to such conditions, all as it shall consider appropriate in the circumstances; and
(b) the solicitor shall, if an application for legal aid has not already been submitted, submit an application for legal aid within 28 days of commencement of the urgent work and failure to do so shall exclude that work from any legal aid that may be made available.
(5) Where work is carried out by a solicitor in the circumstances described in paragraph (1) above-
(a) Section 17 (contributions and payments out of property recovered) of the Act shall be modified so that-
(i) a legally assisted person for the purposes of that section includes a person for whom such work is carried out; and
(ii) the requirements of that section apply in respect of specially urgent work undertaken before an application for legal aid made in terms of section 14 of the Act is determined;
...
(c) Regulations 21 (prior approval of the Board required for employment of counsel etc.), 39 (recovery of expenses) and 40 (recovery of payments out of property recovered or preserved) below shall be modified so that a person in receipt of legal aid for the purposes of those regulations includes a person for whom such work is carried out.
(6) Where work is carried out by a solicitor in the circumstances described in paragraph (1), and an application for legal aid made in terms of section 14 of the Act is subsequently refused -
(a) section 4(2)(a) of the Act shall be modified so that there shall be paid out of the Fund -
(i) where the Board is satisfied as to the factors in paragraph (7), payments to meet such sums as the Board approves; or
(ii) where the Board is not satisfied as to the factors in paragraph (7), any contribution paid by, or expenses awarded to, a person for whom a solicitor has undertaken specially urgent work; and
(b) section 4(3)(b) of the Act shall be modified so that there shall be paid into the Fund any sum recovered under an award of a court or an agreement as to expenses in any proceedings in favour of the person for whom that work is carried out.
(7) The factors referred to in paragraph (6)(a) above are that the Board shall be satisfied that-
(a) the solicitor had reasonable grounds for believing, on the information available at the time the work was done, that the applicant would be eligible for legal aid in terms of section 15 of the Act; and
(b) the work was actually, necessarily and reasonably done, due regard being had to economy.
19. - Notification of decision
(1) The Board shall give notice in writing of its decision to grant or, as the case may be, refuse, legal aid-
(a) to the applicant and the applicant's solicitor; and
...
(4) Where the Board refuses an application it shall inform the applicant and the applicant's solicitor that the application has been refused on one or more of the following grounds:-
(a) the Board has determined that the applicant has disposable income which makes the applicant ineligible for legal aid;
(b) the Board has determined that the applicant has disposable capital of an amount which renders the applicant liable to be refused legal aid and that it appears to the Board that the applicant can afford to proceed without legal aid;
(c) the proceedings to which the application relates are not proceedings for which legal aid may be given;
(d) it appears to the Board by virtue of the provisions of regulation 14(2), regulation 15 or, as the case may be, regulation 16 above, that legal aid should not be granted;
(e) the Board is not satisfied that the applicant has probabilis causa litigandi;
(f) it does not appear to the Board that it is reasonable in the particular circumstances of the case that the applicant should receive legal aid...
...
21. - Employment of counsel and expert witnesses and prior approval of the Board in cases of work of an unusual nature or likely to involve unusually large expenditure
(1) Subject to paragraph (2) below, the prior approval of the Board shall be required-
(a) for the employment in the [Supreme Court] 1 of counsel other than Scottish counsel;
(b) for the employment in the Court of Session of senior counsel or of more than one junior counsel;
(c) for the employment of counsel in the sheriff court, the Scottish Land Court, the Lands Tribunal for Scotland or the Employment Appeal Tribunal or in proceedings before the Proscribed Organisations Appeal Commission, the Social Security Commissioners or the [Upper Tribunal] 2 ;
(d) for the employment of any expert witness; and
(e) for work of an unusual nature or likely to involve unusually large expenditure.
(2) Paragraph (1) above shall not apply where the Board, on an application made to it for retrospective approval for the employment of counsel, of an expert witness, or, as the case may be, for work of an unusual nature, considers that that employment or work would have been approved by it and that there was special reason why prior approval was not applied for...
PART VII
EXPENSES
...
39. - Recovery of expenses
(1) This regulation applies where-
(a) any sum of money is recoverable under any award of or agreement as to expenses in favour of any party in any proceedings in respect of which that party is or has been in receipt of legal aid; and
(b) that sum of money is due to be paid to the Board in terms of section 17(2A) of the Act.
(2) The Board may-
(a) take such proceedings in its own name or in the name of that party as may be necessary to ensure payment of any such sum to the Board, including proceedings to enforce or to give effect to any such award or agreement; and
(b) for those purposes do diligence in its own name or in the name of that party.
(3) Where any such sum is paid directly to the Board, the receipt of the Board shall be a good discharge therefor.
40. - Recovery of payments out of property recovered or preserved
(1) This regulation applies where-
(a) in any proceedings or under a settlement to avoid them or bring them to an end, any property is recovered or preserved for any party; and
(b) there is or may be an amount of net liability of the Fund on account of that party which is payable to the Board by that party, in priority to any other debt, out of any such property in terms of section 17(2B) of the Act, as read with regulation 33 above.
(2) The Board may-
(a) take such proceedings in its own name or in the name of the party as may be necessary to ensure payment of the amount of the net liability of the Fund on account of that party out of such property, including proceedings to enforce or give effect to any decision in the proceedings or any settlement; and
(b) for those purposes do diligence in its own name or in the name of the party.
(3) Where any such property is paid or made over to or held by the party or any solicitor acting for the party in the proceedings-
(a) the party and the party's solicitor shall not, without the consent of the Board, deal in any way with, dispose or part with the possession of, or title to, such property unless and until the amount of the net liability of the Fund on account of that party is paid to the Board and a discharge received therefor;
(b) without prejudice to paragraph (2) above, the Board may take such action as it considers necessary to ensure payment of the amount of the net liability of the Fund on account of that party out of such property and to make effective the priority conferred by section 17(2B) of the Act..."
Counsel for the respondent's submissions
[8] Mr Murray informed the court that the respondent was unemployed and in receipt of state benefits. She was not a person who had any other resources. He submitted that her conduct in opposing the petition had been reasonable. If the court accepted that she was "a legally assisted person" in terms of s.18(2) modification of her liability to nil was appropriate.
[9] Mr Murray maintained that on a proper construction of the relevant provisions of the 1986 Act and the 2002 Regulations the respondent was "a legally assisted person" within the meaning of that expression where it occurs in s.18(2) of the 1986 Act. The work undertaken as a matter of special urgency had been the work required for and incidental to the court hearings on 31 May 2013 and 7 June 2013. The Board had exercised its power to "make legal aid available" for that work, all in terms of reg.18(1). In terms of reg.2(1) "legal aid" meant "civil legal aid" within the meaning of s.13(2) of the Act. Section 13(2) defined "civil legal aid" as meaning "representation by a solicitor and, where appropriate, by counsel in any proceedings mentioned in Part I of Schedule 2 to this Act, on the terms provided for in this Act...". The urgent work done by solicitors and counsel for the respondent was such representation. The respondent was "in receipt of civil legal aid" and was therefore a "legally assisted person" as defined in s.16(2). It followed that she was "a legally assisted person" in terms of s.18(2).
[10] If there were any ambiguity as to the proper construction of the relevant provisions it could be resolved by examining the legislative provisions which were in place before the 1986 Act, and by application of the canon of construction which presumes that legislation does not intend to remove an existing right unless it does so expressly or by clear implication (Craies on Legislation (9th ed.), p.501; Re Cuno [1889] 43 Ch D 12, per Bowen LJ at 17). Under the regime in force before the 1986 Act in situations of special urgency a person was granted an emergency certificate; and "assisted person" had been defined in the applicable regulations (see e.g. Legal Aid (Scotland) Regulations 1950 (SI 1950/1513); Legal Aid (Scotland) (General) Regulations 1960 (SI 1960/2195)) as meaning "a person to whom there has been issued and in respect of whom there is in force a legal aid certificate or an emergency certificate issued in accordance with these Regulations". The pre-1986 Act regulations had expressly provided that an emergency certificate should have effect in all respects as if it were a legal aid certificate (reg.8(3) of the 1950 Regulations and reg.9 of the 1960 Regulations). It followed that prior to the 1986 Act a person in receipt of emergency cover could competently seek modification (under s.2(3)(e) of the Legal Aid and Solicitors (Scotland) Act 1949, or, subsequently, s.2(6)(e) of the Legal Aid (Scotland) Act 1967, the predecessor provisions to s.18(2) of the 1986 Act). It should be presumed that the legislature had not intended to remove that right.
[11] Mr Murray recognised that the terms of reg.18(5) of the 2002 Regulations sat uneasily with his submissions; and that his submissions were irreconcilable with the observations of Lord Justice Clerk Gill (as he then was) in Bell v Inkersall Investments Ltd (No.2) 2007 S.C.823 at paragraphs 25-27. So far as reg.18(5) was concerned Mr Murray submitted that it had to be read in the context of all the other provisions he relied upon. If that was done the proper conclusion was that the legislative intention was not to exclude from the ambit of s.18(2) persons for whom work was done under the special urgency provision contained in reg.18. He reminded me that the Lord Justice Clerk's observations in Bell v Inkersall Investments (No.2) had been obiter; that the Second Division in that case had not had the benefit of full argument; and that both Lord Johnston (para.44) and Lord Marnoch (para.46) had preferred to reserve their opinions on the point. He submitted that this court had had the benefit of fuller argument. He respectfully suggested that the Lord Justice Clerk's observations were not well founded, and that I should decline to follow them.
[12] In addition to the authorities already mentioned Mr Murray also made reference to Stoddart, The Law and Practice of Legal Aid in Scotland (1st ed.), paragraphs 5-04, 9-16; Stoddart and Neilson, The Law and Practice of Legal Aid in Scotland (4th ed.), paragraphs 11-04, 11-05; Lyall v Atholl Palace Hotel, Pitlochry Ltd 1951 S.C. 512; Milne Mackinnon & Peterkins v Scottish Legal Aid Board 1989 SCLR 464; and Armstrong v Armstrong 1970 S.C.161 at 166.
Counsel for the petitioner's submissions
[13] Mr McAlpine did not accept that the respondent's conduct in opposing the petition had been reasonable. He submitted that if, contrary to his submissions, she was a "legally assisted person" in terms of s.18(2), her liability should not be modified to nil. Her conduct in connection with the dispute had been reprehensible. In any event her financial circumstances required to be vouched. The petitioner had not had the benefit of legal aid, but he had very modest resources. He had had to find the wherewithal to pay his own legal expenses. Granting the respondent's motion would remove any chance he had of recouping any of those expenses from her.
[14] Mr McAlpine submitted that on a proper construction of the relevant provisions of the 1986 Act and the 2002 Regulations the respondent was not a "legally assisted person" within the meaning of that expression where it occurs in s.18(2) of the 1986 Act. As that prerequisite for modification of liability was not satisfied there could be no modification.
[15] The respondent was not "in receipt of civil legal aid" and was not a "legally assisted person" as defined in s.16(2). On a proper construction of reg.18 it provided that specially urgent work undertaken before an application was determined could be eligible to be included within any grant of legal aid made when the application was determined. Only if and when that occurred would an applicant be "in receipt of civil legal aid". That construction was consistent with the terms of the 1986 Act and with other provisions of the 2002 Regulations. The fact that reg.18(5) modifies s.17 of the Act by extending the definition of "legally assisted person" for the purposes of that section (so as to include a person for whom specially urgent work is carried out by a solicitor in the circumstances described in reg.18(1)) is a clear indication that, but for such modification, a person for whom such work is done (and whose application for legal aid has not been granted) is not a "legally assisted person". Similarly, the fact reg.18(5)(c) modifies regulations 21, 39 and 40 so that, for the limited purposes of those regulations, a person "in receipt of legal aid" includes a person for whom such work is carried out strongly suggests that, in the absence of such special provision, a person for whom specially urgent work is carried out is not (unless and until his application for legal aid is granted) "in receipt of legal aid". The observations of Lord Justice Clerk Gill in Bell v Inkersall Investments Ltd (No. 2) at paragraphs 25-27 were persuasive and should be followed. The petitioner's construction accorded with the way the relevant provisions had been understood in practice - by SLAB, by commentators, and by the courts. Reference was made to the Civil Legal Assistance Handbook, Part IV, Chapter 6, paragraphs 6.1 and 6.12; Stoddart and Neilson, The Law and Practice of Legal Aid in Scotland (4th ed.) paragraphs 11-39, 12-14; Stair Memorial Encyclopedia, Vol. 13, Legal Aid, para. 1049; Stair Memorial Encyclopedia Reissue, Legal Aid, para. 80; Bell v Inkersall Investments Ltd (No.2) at paragraphs 25-27; Forbes v Aberdeenshire Council 2010 SLT 909.
Discussion
The Act
[16] In terms of s.16(2):
"legally assisted person" means a person in receipt of civil legal aid in the proceedings in question or a person in receipt of assistance by way of representation..." (emphasis added).
It was common ground that the respondent is not in receipt of assistance by way of representation. The issue is whether she is in receipt of "civil legal aid".
[17] Section 13(2) defines "civil legal aid" as "representation by a solicitor and, where appropriate, by counsel...on the terms provided for in this Act..."
[18] Sections 14 and 15 set out the circumstances which require to be satisfied for civil legal aid to be available to a person. The Board has determined that they are not satisfied in the present case. The respondent's application for legal aid has been refused. It is plain, therefore, that she has not been in receipt of civil legal aid by virtue of a grant of that application. Mr Murray acknowledged this, but argued that, on a proper construction of the 2002 Regulations, the respondent has been granted and has been in receipt of civil legal aid for specially urgent work.
The 2002 Regulations
[19] In my opinion the meaning and effect of reg.18(1) are clear. A decision to grant legal aid for specially urgent work is to be taken at the time of determination of the legal aid application itself, not at any earlier date. The words "before an application is determined" qualify the immediately preceding words "specially urgent work undertaken". They do not qualify the opening words of reg.18(1) ("The Board may make legal aid available"). Reg.18(1) provides for consideration at that later date of whether the applicant should receive legal aid for specially urgent work carried out an earlier date. At that later date the Board requires to be satisfied that "at the time such work was undertaken there was probabilis causa litigandi" and that "it appears to the Board that it is reasonable in the particular circumstances of the case that the applicant should receive legal aid"(emphasis added). The power to grant legal aid which covers such specially urgent work can be exercised only where the requirements of paragraphs (a) or (b) are met: viz. that the work involved a step or steps specified in reg.18(2) "which has required to be taken as a matter of special urgency to protect the applicant's position"(para.(a)) (emphasis added); or in any other circumstances where the Board is satisfied on application that steps require to be taken as a matter of special urgency (para. (b)). Where it is applicable, para.(a) or para.(b) is a condition precedent to the grant of legal aid for specially urgent work. Satisfaction of the relevant condition has the result that the work may qualify for legal aid, but it does not, per se, empower the Board to grant, or entitle the applicant to receive, legal aid for the work. Only where legal aid for such work has been granted does the applicant "receive" legal aid; only then does the Board "make legal aid available". The fact that a step is specified in para.(2) and requires to be taken as a matter of special urgency does not mean that legal aid will be granted for it; and certification by the Board under reg.18(1), para.(b) and reg.18(4)(a) that it is satisfied that certain steps require to be taken as a matter of special urgency is not a grant of legal aid. The provision of legal aid for such work will depend upon the applicant's legal aid application being granted and on all the requirements of reg.18(1) being satisfied at that time.
[20] I derive further support for that construction in other provisions of Regulation 18. It appears to me that regulations 18(3), (3A) and (4) each proceed on the basis that legal aid for the specially urgent work will not be granted unless the legal aid application is granted. Reg.18(5) modifies s.17 of the Act by extending the definition of "legally assisted person" for the purposes of that section (so as to include a person for whom specially urgent work is carried out by a solicitor in the circumstances described in reg.18(1)). That is a clear indication that a person for whom such work is done (and whose application for legal aid has not been granted) is not a "legally assisted person" in terms of s. 16(2). Similarly, the fact reg.18(5)(c) modifies regulations 21, 39 and 40 so that a person "in receipt of legal aid" for the purposes of those regulations includes a person for whom such work is carried out strongly suggests that a person for whom specially urgent work is carried out is not (unless and until his application for legal aid is granted) "a person in receipt of legal aid" in terms of s.16(2). Regulation 18(6) makes provision for certain payments to be made to solicitors for specially urgent work, and for certain sums recovered to be paid into the Fund, where the legal aid application is refused. There would have been no need to make any such provision if, as Mr Murray argued, the specially urgent work undertaken in such circumstances was work for which civil legal aid had been granted to and received by the applicant (by virtue of the operation of reg. 18(1)). Had it been, such solicitors would have had a statutory entitlement to remuneration qua solicitors who had carried out work for a legally assisted person. The sums referred to in reg. 18(6)(b) would have been recoverable in terms of s. 4(3)(b) of the Act (without the need for any modification to extend its application) because the recipient of the specially urgent work would have been "in receipt of civil legal aid".
Is there any scope for application of the presumption against removal of an existing right?
[21] Since I find the relevant provisions to be unambiguous I do not consider that resort to this canon of construction is either necessary or appropriate. Even if, contrary to my view, there had been ambiguity, I do not accept that the circumstances would have been apt for application of the presumption. The 1986 Act is not a consolidating statute. It enacted very substantial reform of the law relating to legal aid. Part of that reform involved the abolition of the previous regime of emergency cover, and its replacement with a different regime for specially urgent work. The operation and effect of the present regime are, and were intended to be, materially different from the operation and effect of the old regime. If (as Mr Murray maintains) under the old regime a person in receipt of an emergency certificate was an "assisted person", and an emergency certificate had effect in all respects as if it were a legal aid certificate, that was because (as Mr Murray submitted) there was specific statutory provision to that effect. No such provision been made in the present regime, and the statutory provisions enacted are, in my opinion, inimical to the construction which Mr Murray suggests.
Bell v Inkersall Investments Ltd (No. 2); and how the provisions have been understood in practice
[22] It will be clear from the discussion so far that I find myself in very substantial agreement with Mr McAlpine's submissions. I do appear to have had the advantage of fuller argument than the court had in Bell v Inkersall Investments Ltd (No. 2), but that fuller argument has not caused me to doubt Lord Justice Clerk Gill's observations. On the contrary, in my opinion fuller argument affirms his analysis to be correct, and I respectfully agree with it. I obtain added assurance from the fact that the petitioner's construction accords with the way the provisions have been interpreted and applied by SLAB, and with how they have been explained by commentators (see in particular the Civil Legal Assistance Handbook, Part IV, Chapter 6, paragraphs 6.1 and 6.12; Stoddart and Neilson, The Law and Practice of Legal Aid in Scotland (4th ed.), paragraph 12-14; Stair Memorial Encyclopedia, Vol. 13, Legal Aid, para. 1049; and Stair Memorial Encyclopedia Reissue, Legal Aid, para. 80).
Conclusions and Decision
[23] In my opinion, on a proper construction of the 1986 Act and the 2002 Regulations, the respondent is not a "legally assisted person" within the meaning of that expression where it occurs in s. 18(2). It follows that there is no basis for the power in s.18(2) to be exercised in favour of the respondent. Accordingly, I shall refuse the motion for modification.
[24] Had the respondent satisfied me that she was a legally assisted person (and therefore fell within the ambit of s.18(2)) I would not have disposed of the motion on the basis of the rather vague information provided anent her current financial circumstances and resources. I would have put the matter out by order to enable her to provide appropriate vouching of those matters.