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SLAB’s decision to grant legal aid reduced

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SLAB’s decision to grant legal aid reduced

09 January 2018

Where a party makes an application to the Scottish Legal Aid Board (“SLAB”) for legal aid, the relevant Regulations set out how the application is to be made.  The applicant requires to provide SLAB with sufficient information to evidence that she has probable cause and that it is reasonable for legal aid to be granted. Where SLAB receives an application for legal aid, the opponent in the proceedings will, except in prescribed circumstances, be given an opportunity to make representations to SLAB. In order to enable the opponent to do this, she is provided with a statutory statement  as to the nature of the case in respect of which legal aid is sought (the “Statutory Statement”). The Regulations do not require the opponent to be sent the information required to evidence probable cause and reasonableness. SLAB will not disclose any other information to her unless the applicant consents to such disclosure, having regard to its statutory duty of confidentiality.

In the case of Glasgow City Council v Scottish Legal Aid Board, Glasgow City Council (“GCC”) sought to reduce two decisions by SLAB to grant legal aid to an applicant for reclaiming motions to the Inner House. 

In making the application for legal aid, the applicant had provided a Statutory Statement which stated only that the Lord Ordinary had erred in law. GCC had sought further information from SLAB in respect of the application. However, SLAB refused to provide this on the grounds that the information had been supplied in confidence to SLAB for the purposes of the application, that the applicant had refused to consent to any information being provided to GCC, and so SLAB would breach its duty of confidentiality. In contrast, SLAB advised GCC that, if GCC did not consent to the disclosure of information supplied by it, SLAB would not be able to investigate the issues raised. GCC was given no reasons for the grant of legal aid to the applicant. GCC argued that as a consequence of the procedure adopted by SLAB, it had no real opportunity to address the case for the grant of legal aid against it.  GCC argued that this was a breach of the common law requirements for procedural fairness. GCC also argued that interpreting the legislation in this manner was incompatible with Convention Rights, albeit GCC is not a victim under ECHR.

Lord Woolman reduced the two grants of legal aid on the basis that there had been a breach of the common law requirements for procedural fairness.

In doing so, Lord Woolman rejected the submission that section 34 of the Legal Aid (Scotland) Act 1986 could be interpreted so as to enable SLAB to provide information to an opponent without an applicant’s permission where that information was necessary in the interests of procedural fairness. He also rejected the Convention Rights argument. However, he agreed that procedural fairness required that an opponent was entitled to actively participate and engage in the application procedure. He considered that the appropriate way for ensuring this was through the Statutory Statement. He concluded that SLAB ought to have advised the applicant that it would not consider her application until she provided sufficient notice of her case to GCC. He also opined that SLAB ought to give such reasons as it could, but bearing in mind the restrictions imposed by issues of confidentiality those may be limited.

Anna Poole QC and Elisabeth Roxburgh of Axiom Advocates appeared for the petitioner. Ruth Crawford QC appeared for the Scottish Legal Aid Board.