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M (Petitioner) [2013] CSOH 160 - 03/10/13


Motion for modification of expenses to nil in terms of s. 18(2), Legal Aid (Scotland) Act 1986, raising the issue of whether the respondent, when opposing a petition, was a 'legally assisted person' by virtue of the special urgency provision contained in reg. 18(2), Civil Legal Aid (Scotland) Regulations 2002. The respondent did not have a legal aid certificate when the urgent work was carried out and her application for civil legal aid was subsequently refused.

Motion refused. Held: The respondent was not a legally assisted person and there was no basis for the power in s. 18(2) to be exercised in her favour. The meaning and effect of reg. 18(1) was clear. Legal aid for specially urgent work will not be granted unless the legal aid application is granted. The power to grant legal aid covering such specially urgent work can only be exercised where the work involved was a required step laid down in reg. 18(2) (reg. 18(1)(a)) or in other circumstances where the Board is satisified that steps were taken as a matter of special urgency (reg. 18(1)(b)). Satisfaction of either of those conditions is a pre-requisite for legal aid for specially urgent work, but not, in themselves, a grant of legal aid. Lord Justice Clerk Gill's obiter observations in Bell v Inkersall Investments Ltd (No. 2) [2007] CSIH 60 agreed with.