Scottish Law Agents Society - News Scottish Law Agents Society - News Scottish Law Agents Society - News en-gb Copyright 2017 Scottish Law Agents Society. All Rights Reserved. Scottish Law Agents Society <![CDATA[Scale Fees]]> /node/3011 /node/3011#comments Of course the return to scale fees is widely regarded among the legal profession and elsewhere as being unlikely, infeasible and unattractive. That leads us to consider the alternatives. If law firms are compelled to compete on prices, how do they go about it and does that operate in the public interest ?
Nowadays when prospective clients email around firms for quotations of conveyancing costs and when competition for ever cheaper deals is the way of the world in many if not all markets and when the term “bucket shop conveyancing” has come into use, practitioners may well be inclined to look for ways of reducing costs to clients. The following have been noticed.

1. Increased volume of clients.

If more clients are paying fees to the firm then it follows that the fees charged to individual clients may be reduced. If these reductions bring in even more clients then, of course, the fees can be reduced even more, and so on. One way to stimulate volume is to make special arrangements with estate agents and other agencies so that they will effectively push clients in your direction. The arrangement may well be that you will direct all your estate agency requirements to a particular agent and that agent, in turn, will direct his “solicitor free” business to yourself. Of course, some awkward customers might wish to instruct a particular solicitor, possibly one previously associated with that customer’s family or a solicitor of whom that customer has heard other people speak highly. Such reluctance can often be overcome by the inducement of “a special deal” or perhaps an insinuation that failure to use the appropriate solicitor might in some way hamper the business in hand. It is beyond the scope of this note to explore all the ways and means ofsuch other agencies. Such arrangements were previously regarded as bad form, under the description of touting but they are now practised quite openly and make obvious, good commercial sense, at least in the short term. On the longer term it may hand economic influence and a degree of control over the law firms to outside agencies and, of course, fashions might change again and this might be challenged as being unprofessional conduct. The question as to whether or not it is a fair way to run business does not appear to arise at lest currently. However, as Mr Fallon pointed out recently, what is all right one day might not be acceptable another day.

2. Systemisation of unqualified staff

Of course, certain essential elements of the conveyancing transaction constitute reserved work in terms of the Solicitors (Scotland) Act 1980 and can only be carried out, in consideration of fees, by qualified solicitors. However, if we have stimulated our clientele as suggested in 1 above then it follows that we might need more solicitors to carry out these reserved services. This would involve the payment of professional salaries. A way round this is to engage and train a number of non qualified persons and design a system of operation which enables a routine transaction to be carried out without the direct involvement of a solicitor but which will highlight any circumstances out of the ordinary which might require the attention of a solicitor who will, in any case, sign off any necessary papers required for the completion of the reserved work. While it might frustrate some clients not to meet and talk with a solicitor during the transaction, the lure of cheaper fees is likely to be sufficient compensation. The main downside here is the risk of allowing reserved work and work associated with reserved work to be carried out by persons who do not have a background of having studied and obtained relevant qualifications in the law and practice of property, contract and conveyancing. This risk affects the interests of the client and of the law practice and of the insurance which supports the whole legal profession and also of the public in having the property registers accurately updated.

3. Minimise the technical work

While it was once upon a time sufficient evidence of transfer of ownership for the seller to hand the purchaser a clod of earth taken from the property, in more recent times, since 1617, this operation has depended on relative paperwork. The study of the paperwork associated with a particular property and the drawing up of the document required to transfer its ownership can sometimes be quite complicated. What if a particular owner has died, gone mad or disappeared? What if there are conditions associated with the ownership? What if the keeper of the Land Register has made subtle changes in the Register affecting the ownership of that property but without telling the owner about these changes? What if the previous owner is or has been subject to insolvency so that his apparent legitimate ownership and therefore your client’s subsequent ownership might be subject to cancellation by the previous owner’s creditors? What if some previous owner of the property has carried out alterations to the property without local authority planning permission or building consent? Resolving these issues can be time consuming and involve the use of solicitors, two factors which conflict with the objective of turning over suitable volumes of fees. Not all, but some of these issues can be solved with the use of insurance indemnity. I have very little experience of this operation and what follow is largely guess work. The insurance indemnity appears to operate on the basis that so few transactions are actually turned belly up by these issues that the insurers find it worthwhile, in exchange for a regular inflow of premiums, to meet the financial consequences of such an event. This does not appear to me to address the uninsurable but significant adverse consequences of the collapse of a purchase/sale transaction, a circumstance which is likely to cause considerable inconvenience to those involved. However, like being shot by a terrorist, it is never likely to happen to any particular individual and so it should mostly be ok. A downside is that errors and omissions which have no immediate financial consequences may become embedded in the system and create risks for future clients and conveyancers.

4. Avoid Unnecessary Searches

Traditionally, when a client purchased a residential property, searches were required at two stages. In the first place, when the initial contract was entered and the purchaser is called upon to enter a legal obligation to purchase the property, it was thought to be necessary to carry out searches against the ownership title, the conditions of that title, the existence of mortgages and also the solvency of the owner. Such searches would provide early warning of any unpleasant incidents that would disturb the transaction if not uncovered until a later stage and which might then be resolved in time for that settlement. The second occasion on which such searches are required arises at the time of the settlement of the transaction and payment of the purchase price. Things might have changed since the searches were carried out at the contract stage and those initial searches now have to be updated. That means two lots of searches. The modern logic is, however, to borrow from methods observed to operate south of the border. What if we do not bother with an initial contract? Then we do not need initial searches. This results in an immediate reduction of transaction expenses. This also means, unfortunately, that nobody can know until the very last minute whether the transaction is going to proceed or whether the searches might reveal something which either prevents or postpones the transaction but, again, just as the assassin’s blade is unlikely to find any particular individual, we can assume that it will not happen in any particular transaction. This is a strategy which works well, most of the time, and which certainly reduces the cost of conveyancing.

The obvious downside is that something might go wrong at the last minute when the searches are carried out. The seller might transpire to be subject to an insolvency and have no legal power to sell the property or there may be a second mortgage over the property and no arrangements in hand for that mortgage to be discharged in time for the present transaction to settle, to mention only two of a very wide range of possibilities. If the Searches had been carried out at the outset then these matters might have been addressed in time for the transaction to proceed. Also, if the selling solicitor “Knew his client” then he would have known long in advance about such difficulties. There is also an important issue of public interest. The removal of the initial contract from the process potentially destabilises the market so that the practices of gazumping and gazundering which were traditionally always associated with the English market, now become possible in the Scottish market also. Apart from individual inconvenience, the effect of gazumping and gazundering is sometimes seen as causing fluctuations in property prices to gather momentum, leading to high values, high mortgages followed by negative equity and repossessions etc. The Scottish market, stabilised by the principal of contract was generally proof against these incidents. But these are matters of public interest and hardly relevant to the interests of an individual purchaser who seeks simply to have his conveyancing costs reduced to the minimum. The question is whether the solicitor has a duty to the public interest. What is the answer ?

I hope that it is clear that much of the foregoing is based on subjective opinion and is not intended to be dogmatic in any way. Other views are welcome for publication on this website.

General Fri, 03 Nov 2017 16:27:07 +0000
<![CDATA[Christmas Party 2016 Recap]]> /node/3008 /node/3008#comments  


General Fri, 04 Aug 2017 09:42:53 +0100


We have to apologise for the late production of the June 2017 Gazette number 85/2 which is now scheduled to land on your desks by mid August. The first practical reason for this is quite simply absence due to illness on the part of key personnel.  However, we have also had some difficult material to deal with.  This relates to changes taking place in operations at the Land Register.  While many members advise that they are having difficulty with the registration of titles and difficulties also with titles which have previously been registered or recorded and while we have addressed these difficulties to the Law Society and to the Keeper, the response which we have received is that there are no such difficulties. We hope that that may be the case but the information which we have received indicates otherwise.  In particular we are advised that some existing, registered or recorded rights in land have been excluded from the register and that  a widespread amendment of existing titles has been carried out by the Keeper without reference to the affected proprietors. Again this might not give rise to any problems because the changes may be required simply to keep up with adjustments to the Ordnance Survey map. At the same time, some members are uneasy in principle about this development.  We deal with this matter in the current Gazette but clearly there is an onus on our profession to scrutinise closely any possible threat to the reliability of land registration.





General Thu, 03 Aug 2017 16:05:16 +0100
<![CDATA[Alternative Business Structures in 2017]]> /node/3006 /node/3006#comments Alternative Business Structures in 2017

The Scottish Law Agents Society was formed in 1884 as the first national, representative and regulatory body for Scottish solicitors. It was a voluntary convention formalised by a Royal Charter of Queen Victoria, which was amended by Charter of George V and then updated by Charter of Queen Elizabeth II. Its immediate mission in 1884 was the creation of a compulsory society as the best means of securing proper standards of education, training and professional practice within the profession. That objective was achieved in 1949 with the statutory creation of the Law Society of Scotland. Some discerning members of the profession have maintained the existence of the voluntary society in order to provide the profession with a forum for discussion and opinion outwith the statutory shadow which hangs over the compulsory body. The wisdom of doing so may have been demonstrated by the following developments.

A new business profile has been presented to the legal profession in which the ownership of law firms would no longer be restricted to qualified lawyers, but could be extended to other professional persons, such as accountants and surveyors and even be shared with commercial institutions such as banks and supermarkets. This would supposedly provide lawyers with opportunities of offering a wider range of services, securing business from the clients of these joint professional owners and of access to financial services and borrowing from institutional investment part-owners and the facility of providing legal services at locations more convenient to the customers, for example, at supermarkets. More immediately, it would provide any large or medium sized Scottish firms, who happened to be suffering from financial discomfort with an opportunity to secure future borrowing in exchange for part-ownership of their businesses, thus making cash available to pay the capital accounts of retiring or outgoing partners and leaving the ongoing profession to manage as best they could with their new, commercial bedfellows.

More immediately still, it would present the practising solicitor with a challenging conflict of interests between the client who seeks to minimise his legal expenses and the investor and shareholding owners who are legally entitled to seek the maximisation of the profits to be derived from the fees paid by that client. If a solicitor’s practice is owned substantially by a bank or is part of a joint enterprise with firms of accountants or surveyors or whatever then how can that solicitor possibly advise independently on financial matters, asset valuation or property valuation? If the client turns out to be let down by any of these auxiliary professional services, then is his or her solicitor necessarily going to advise the client at the earliest opportunity as to any damage occasioned by such defective professional services? Might there be seen to be a temptation to seek a resolution which avoids the exposure of these deficiencies? It would certainly be in the financial interests of the solicitor to do so.

These changes were duly authorised by the Legal Services (Scotland) Act 2010. but have not yet reached the high street or the attention of the public, because of the difficulty in the creation of a regulatory framework. At the same time, our own Society continues to challenge the wisdom of the proposed changes in the interests of both the solicitors’ profession and of the public which it serves.

While this new regime appeared to be unacceptable in principle when it was initially proposed around 2008/2010, at least, at that time, there was an element of support within the profession. That was mainly centred upon the large firms, some of whom had particular balance sheet situations which could have been solved by the implementation of the legislation and the partial sale of these practices to financial interests outwith the profession. That time has now passed. The firms in question have mainly ceased to exist or become subject to non Scottish ownership. It is now difficult to envisage where there may be any significant support within the legal profession for the new regime. Nevertheless, the profession’s own statutory body appears intent on bringing it about and the Scottish government has indicated all along that this is being done at the instance of the legal profession. The original legislation is at least partially out of date due to other changes which have taken place in the meantime. .Accordingly, amending legislation may be required. That shall be something for our Council and membership to scrutinise and decide whether or not to challenge.

One difficulty in sustaining such opposition lies in the fact that, since 2010, successive generations of law students have been instructed at university that ABS, having been authorised by statute in 2010, already forms part of the provision of Scottish legal services. It is perhaps of less significance to academic lawyers than it is to practitioners that particular legislation, although enacted, is not yet in effect. That may be a function of the extent to which the profession has abrogated in favour of the universities its responsibilities to train and educate the future profession. Nevertheless, things may not be so bad. I attach below items recently received from prospective solicitors which show that somebody must be doing something right at University.


The profession of solicitor commanded respect within wider society. Solicitors were educated at a time when the majority of the public was illiterate, hence the term writer, and would dedicate a large portion of their lives to learning. They were collegiate. They were professionals.

Being a solicitor is now so far from what it used to be I struggle to see it as a profession any longer.

The need to compete, though healthy to a point, is damaging the quality and respectability of the profession. It is becoming a provider of legal services at the mercy of consumers. Charging by the hour or charging a fixed price for a particular service was the norm. Now you are only likely to find this type of feeing in private client practices.

Due to the collegiate nature of the profession there was an unwritten rule that one would not charge less that a particular amount for a particular job. Ensuring that a fair price was paid for the service. This meant that each firm would try and distinguish itself by the quality of work, rather than the price. The good firms would thrive, the bad, fail. This would naturally drive the standards of the profession higher as the solicitor tried to be a better practitioner than his rivals.

This practice was seen as anti-competitive and damaging to the consumer. And so it stopped and solicitors started finding new and imaginative ways to attract business. One such method is tendering.

Tendering involves a law firm bidding to potentials clients for business. It offers the services of its solicitors and support staff for a lower amount than the competition. It never knows the amount bid by its competitors and must therefore bid lower than it thinks the contract is actually worth to increase the chance of being the successful bidder, securing the lucrative contract.

At the end of the contract period the firm must tender once more. And here is where the problems arises: to be successful it must either offer the same work for less money, more work for the same money, or more work for less money. Either way the firm must devalue the service it provides in order to secure business or risk losing it to the competition. This is fine in the short term, but each time the firm tenders the result is more work and less money. This inevitably leads to the reduction of expenditure in order to maintain a profit. The biggest expenditure in a law firm is the wage of its solicitors. So it must reduce either the level of wage for new solicitors or the number of solicitors. This is happening right now in Scotland. Firms are squeezing out senior and associate level solicitors and replacing them with paralegals and trainees. Why have ten solicitors in a team when ten paralegals can do the work and have one solicitor supervise and sign their work?

In the diploma we are taught to think of the benefit of providing value added services to large clients and to be commercially aware, looking after the business of our clients. This is normalising a behaviour that is eroding the profession of solicitor. We are being conditioned to think solicitors are just an extension of the client’s business—members of staff who just happen to know the law, rather than legal agents who use their knowledge of the law, their ability to think critically, and a high standard of professionalism to represent their client’s interest against all others. This is symptomatic of the devaluation of the profession. And the worst part is, we are told that young solicitors feel the old solicitors who are against innovation and modernisation are the greatest danger to the profession. If the above is the innovation and modernisation they strive for, then the greatest threat to the profession is the solicitors who have forgotten what it means to be a solicitor; a member of one of the oldest professions in the country and an officer of court, not a provider of legal services.

Another trainee wrote : "How do we reconcile the duties we have towards other members of the profession with the fact that we are increasingly competing with each other for work? The legal profession seems to have become a business rather than a profession so how can the ethics and values associated with the profession, particularly those associated with relationships with other members of the profession be maintained?"


General Fri, 23 Jun 2017 11:12:19 +0100
<![CDATA[SLAS Christmas Party with Lord Gill]]> /node/3005 /node/3005#comments As now widely advertised, the SLAS Christmas Party will feature, as well as the second edition of the law agent's home companion with choral signing by the Glasgow Laulau choir singing acapella, a talk by Sheriff Alf Vannet and classic songs by Kathleen Burgess- a short delivery by Lord Gill on the subject of the separation of powers. By coincidence, that is the very topic of a case currently being argued before a full panel of 11 Justices at the Supreme Court at Westminster. We cannot take credit for having arranged that juxtaposition of events, or at least some of them. This will be held at the Royal Faculty in Glasgow from 5:30pm on Thursday 15th December 2016 and, if you wish to attend then please contact the Secretary, Michael Sheridan by email at or by telephone on 0141 332 3536. As the function includes hospitality, we require to close for bookings at 5pm on Monday 12th December 2016. Time is short and you should book your attendance now.


This event was duly delivered and is currently under construction as a prospective podcast.

General Tue, 06 Dec 2016 16:52:38 +0000
<![CDATA[SLAS Christmas party 2016]]> /node/3004 /node/3004#comments The Christmas party this year will be something completely different. We have so much talent on show that we are reluctant to let it all fade into memory. Instead we will present the programme as podcast which will be preserved for future presentation on our website and possibly beyond. The programme is shown in the attached brochure and, while this includes a contribution by the former Lord President, Lord Gill who is currently serving on the Supreme Court panel at Westminster, Lord Gill’s contribution will not be included in the podcast and the only opportunity to hear this will be by joining the live, studio audience at the Royal Faculty in Glasgow.

We had asked Lord Gill to address the question of the separation of the powers within the constitution before that issue was raised in the context of Brexit before the Supreme Court and, as a result, we are particularly interested to hear the comments of Lord Gill.

Members and guests attending the event will be invited to contribute to the podcastable outcome by responding, for example, to applause etc., prompts and by generally assisting the production of the programme. We shall convene a short rehearsal before the programme begins.

Sheriff Alf Vannet has delighted us in the past with his lively insight into the legal process and we have asked him on this occasion to address the long standing question as to who has the harder task and the greater intellect, the judge or the advocate – not that that is a guarantee as to where Sheriff Vannet’s remarks may take us on the night.

However, it is Christmas after all and we will include some classic Christmas and other music from the Finnish Glasgow Laulu Choir singing a cappella and from Kathleen Burgess who was trained at the now Royal Conservatoire of Glasgow.

The ticket price includes a finger buffet and refreshments and we hope that the Society’s membership will support the excellent value of this bold endeavour in large numbers.

Those interested in attending the event should have their applications with the Secretary by 5pm on Monday 12th December 2016.

This event was duly delivered and is currently under construction as a prospective podcast.

Member News Mon, 21 Nov 2016 12:30:11 +0000
<![CDATA[Another Scam]]> /node/3001 /node/3001#comments A member tells me today that he was due to settle a conveyancing sale transaction but the money did not arrive. It transpired that the money had been sent to received by and passed on from the wrong bank. It further transpired that, before settlement, an email had been issued by an interloper, bearing to have been sent by the selling solicitor and instructing the purchasing solicitor to direct the funds to a particular (wrong) bank. I understand that the interloping email was subject to spelling and grammatical deficiencies. Perhaps the lesson is that we cannot trust anything communicated by email and where financial transmissions are involved we always have to obtain confirmation. In this particular case, however, i gather that the interloping email included a apparent mandate by the selling client, set out on headed note paper.


General Wed, 15 Jun 2016 16:25:42 +0100
<![CDATA[SLAS AGM calling]]> /node/3000 /node/3000#comments This is to remind members that the AGM takes place at 5:30pm on Thursday 16th June 2016 at the Royal Faculty of Procurators in Glasgow. If you propose to attend this meeting please telephone the Secretary beforehand 0141 332 3536 so that appropriate hospitality can be arranged.


Press Releases Wed, 15 Jun 2016 16:20:21 +0100
<![CDATA[Scottish Law Agents Society extended meeting in the Royal Hotel, Oban ]]> /node/2996 /node/2996#comments SCOTTISH LAW AGENTS' SOCIETY Scottish Law Agents Society - Royal Hotel, Oban 18th February 2016 Agenda for Extended Meeting – from 10.30 AM

1. The regulation of solicitors. (Appendix A)*

Is the regulation of solicitors by a regulatory committee in which solicitors are excluded from the majority and from the chair and which is subject to the oversight of Scottish ministers consistent with the constitutional doctrine of the separation of powers or do these provisions enable parliament and the executive to have excessive control of the legal profession as part of the judicial function of the constitution?

2. Land Registration Problems. (Appendix B)*

Has the Keeper replaced the objective of the registration of landownership with the objective of the creation of a cadastral map of Scotland and, if so, does this prevent the registration of heritable rights and what is the legal basis for doing so.

3. Alternative Business Structures. (Appendix C)*

We are still in the strange position that the Scottish Parliament authorised the non solicitor ownership of legal practices about five years ago in the Legal Services (Scotland) Act 2010. At that time the change was driven mainly by a majority of the large Scottish firms, the policy of some of whom at least appeared to be driven by their own balance sheet considerations. The proposals have been stymied from the time being because the powers that be have been unable to promulgate appropriate regulations to meet legal requirements, as we predicted would be the case from the outset. New legislation is now planned to obviate these difficulties – on the basis that, if the law doesn’t work for us then we just write a new law.

4. Virtual SLAS Council. (Appendix D)*

A mechanism for the solicitors’ profession to consider and respond promptly to issues arising. When even litigation can be conducted on the internet a Society which cannot conduct business online may be subject to a fatal disadvantage.

*For full details see attached PDFs

Practicing sSolicitors and in particular solicitors in the Highlands and Islands area are invited to join the above meeting on giving at least 48 hours of their intention to do so. If you do not attend the meeting but have views or information relevant to the above topics or any suggestions as to what matters should properly be addressed by a solicitors’ representative body then please advise by email to

M Sheridan,



General Wed, 03 Feb 2016 15:29:53 +0000
<![CDATA[SLAS Christmas Party 2015]]> /node/2991 /node/2991#comments SLAS Christmas Party 2015

Glasgow Laulu Choir

Members are invited to join the SLAS Christmas party at the Royal Faculty of Procurators in Glasgow from 5.30pm on Thursday 17th December 2015. This is a chance to meet your colleagues in the relaxed atmosphere of the Faculty with suitable refreshments.

We shall be entertained by a presentation of classical Christmas songs by the Glasgow Laulu Choir singing a cappella.

There is no charge for admission but numbers are limted and it is essential that you register your attendance with the secretary by Friday 11th December 2015, email

General Mon, 07 Dec 2015 11:18:33 +0000
<![CDATA[Michael Scanlan]]> /node/2990 /node/2990#comments It is with great regret that we announce the death of our former President, Michael Scanlan, who passed away this afternoon 20th October 2015. Michael died peacefully in hosptal after an illness and his wife, Margaret, was with him at the time.



General Tue, 20 Oct 2015 16:17:33 +0100
<![CDATA[Report Fraud and Internet Crime]]> /node/2989 /node/2989#comments The Law Society of Scotland is interested in being made aware of email scams (and other similar issues) which are sent to members. Contact


This maintains their awareness of the issues affecting members and enables LSS to issue timely alerts where necessary.


However the firms which receive these can also report these directly on the Action Fraud website;


Action Fraud is the UK's national fraud reporting centre run by the National Fraud Authority with support from partners such as the City of London Police. Email scams can be quickly reported by clicking on the Report Scams and Viruses button on the link provided and then sending the suspicious email to the City of London Police email address provided on the website.   

General Tue, 20 Oct 2015 14:51:33 +0100
<![CDATA[STOP PRESS!!! - Succession (Scotland) Bill]]> /node/2988 /node/2988#comments The draft Bill now before Parliament proposes extensive changes to the law of succession in Scotland.  Many exisitng wills may be affected.  The Scottish Government has called for evidence as to the terms of this Bill to be submitted by 7th August 2015.  Practising solicitors are possibly in the best position to give relevant evidence.  All SLAS members are invited to study the terms of the Bill and to make their views known by email to  We will meet at 4pm in Glasgow on 30th July 2015 at the SLAS Offices at 166 Buchanan Street, Glasgow when we will consider the members' views an prepare a joint submssion of evdience.  Please contact the secretary beforehand if you wish to attend this meeting.  The tems of this Bill can be found on the Scottish Parliament website or thorugh the link on our own website at  

General Mon, 06 Jul 2015 12:42:43 +0100
<![CDATA[Scottish Solicitors Benevolent Fund Golf Outing Friday 21st August 2015]]> /node/2987 /node/2987#comments The Scottish Solicitors Benevolent Fund Golf Outing moves across the Forth to Leven Links this year which is once again kindly sponsored by the First Scottish Group and Legal Post (Scotland) Limited.

The Leven Golfing Society is the eleventh oldest golf club in the world dating back to 1820 ,is widely regarded as one of the best and purest links courses in Scotland and is an Open Championship Qualifying Venue. Leven Links is also the venue for two of the most prestigious amateur events on the Scottish golfing calendar, the Scottish Champion of Champions which is traditionally the season opener for the top amateur golfers in Scotland and the Standard Life Amateur Champion Gold Medal which is recognised as the oldest amateur stroke play competition in the world. Both past champions boards are displayed proudly in the Leven Golfing Society Club House, many of the names being instantly recognisable amongst whom Scotland’s own Andrew Coltart featured in 1989 followed by his brother-in-law Lee Westwood in 1993. Now they have the privilege of hosting us !  Hopefully last year’s winners from Register House will have been too pre-occupied with Advance Notices, Plans Reports and their own version of the One Shot Rule to be bothered with honing their golfing skills to retain the trophy yet again !!

 Leven Links should provide quite a challenge ,the signature hole is the 18th which is a real test of golf for golfers of all standards. In a Bunkered magazine poll it was recently voted the second hardest finishing hole in Scotland behind the 18th at Carnoustie and is an absolute nightmare if played into the wind, which is almost guaranteed!!!

For those up to the challenge, teams of four drawn from firms, faculties and indeed anyone who has even the remotest link with the profession are welcome to come along and put themselves to another great test of links golf. Further information available on the website to whet the appetite. Entry forms for teams of four and further information is available from Ross D Ireland, Williamson & Henry LLP, 13 St Mary Street, Kirkcudbright (LP-1 Kirkcudbright, telephone 01557 330692 and email Numbers are restricted so please gather your teams together, get your entry in now and get it in your diary. Book early to avoid disappointment!  Last date for entries is Friday 24th July. 

General Tue, 16 Jun 2015 09:44:21 +0100
<![CDATA[Court User Satisfaction Survey 2015]]> /node/2985 /node/2985#comments We attach below a letter from 3rd of June 2015 which we have recieved from the Scottish Courts Service and to which members' attention is respectfully drawn.

Michael Sheridan


Member News Mon, 08 Jun 2015 15:25:46 +0100
<![CDATA[March '15 Gazette]]> /node/2984 /node/2984#comments Members need not worry about the absence of the March Gazette.  The content has now been assembled and this edition should arrive by early April.


General Mon, 30 Mar 2015 12:20:32 +0100
<![CDATA[Revenue Scotland and LBTT - Urgent News]]> /node/2983 /node/2983#comments Those not already doing so, should be keeping a close eye on the Revenue Scotland website ( for updates on arrangements for the introduction of the Land and Building Transaction Tax (LBTT) at the beginning of next month.  As of 1st April 2015 the purchase of land or buildings, for either domestic or commercial use, and the registration of certain long leases will no longer be subject to Stamp Duty Land Tax (SDLT).  Any conveyance of property with a value in excess of the prescribed limit (£40,000.00?) registered on or after 1st April 2015 will require to be reported to Revenue Scotland and may be liable for LBTT.  Revenue Scotland have said that guidance and forms (both paper and electronic), replacing the SDLT forms and certificates, will be available on or after 24th March 2015 and that the online portal (through which practitioners must register) will be unavailable between 23rd and 24th March.  A recent tweet by the Law Society of Scotland (@Lawscot) advises that the portal will in fact be unavailable form 5pm 20th March 2014 and recommends that those who have not done so should sign up immediately.  Further details and links available at

General Thu, 19 Mar 2015 14:58:47 +0000
<![CDATA[Agenda for meeting with SLAS at Salutation Hotel Perth from 10.30 am 19th February 2015 ]]> /node/2982 /node/2982#comments 1. Borrowers’ Liability for Mortgage Lenders’ expenses – letter to Law Society of England and Wales and attachments

2.  Regulation of solicitors

(a)          regulation of entities

(b)          Principal or Rule Based Regulation

3. Collegiate Identity for High Street Solicitors.

Is the Law Society of Scotland with its support for ABS and constitutional inability to regulate the profession any longer the appropriate commercial identity for High Street solicitors ?

4. The Bribery Act – payment to third parties for attraction of Business

5. Virtual SLAS Council  -  A mechanism for the solicitors’ profession to consider and respond promptly to issues arising.

6. Land Registration Problems -  A central repository to identify and record problems which need to be addressed.


 NB Please register your interest in joining the meeting beforehand with


General Wed, 11 Feb 2015 16:38:18 +0000
<![CDATA[Land and Buildings Transaction Tax (LBTT) at 10th February 2015]]> /node/2981 /node/2981#comments From April this year, the month after next, we shall require to complete a Land and Buildings Transactions Tax return in order to complete an application for registration of title. The current HMRC Guidance  for this return currently advises that “Guidance is currently in development and will be available in early 2015, well  in advance of LBTT coming into effect.”

We recollect that when SDLT replaced Stamp Duty (in 2004?) a similar situation  arose and there were no forms available for SDLT submissions when the new rules came into force and no registrations of title could proceed throughout Scotland for a period of some weeks, during which the Land Register lost contact with the reality of landownership.  This of course was the very evil that inspired generation of Scottish solicitors to fear the charge of “failing to update the Registers” and the professional discipline that followed  thereon.  No issue was raised, however, when the inefficiency of the revenue authorities led to the wholesale breakdown of the system of land registration and is on the brink of doing so again.

General Tue, 10 Feb 2015 12:46:49 +0000
<![CDATA[6th February - Rejected Application]]> /node/2977 /node/2977#comments This application was submitted to Registers of Scotland on 30th January together with an inventory, a dispositionand an SDLT5. Very, very promptly, one week later, we receive an e-mail advising us of rejection on the grounds that no SDLT5 had been included. The sender very clearly recollects having assembled the papers, made a full copy and having dispatched the papers, including the SDLT5. This would still be well within the protected period, but, for technical reasons, the selling agent did not agree to an Advance Notice but instead on granting a classic Letter of Obligation.

General Fri, 06 Feb 2015 10:40:49 +0000
<![CDATA[Further Land Registration Problems]]> /node/2976 /node/2976#comments Some further difficulties have now been reported to us. We are publishing these not in any way to criticise the registration process but simply to alert members to the difficulties arising and to help avoid these difficulties in the future.

It has been reported that, in one case, where a member sought to register a Discharge of a Standard Security and a new Standard Security, although he has now received the return of the new Standard Security bearing to have been registered, the electronic title sheet shows the property as having no charges. Does this mean that the owner can now sell the property as charge free and, if so, who would bear the damages to the lender?


General Fri, 09 Jan 2015 12:03:07 +0000
<![CDATA[Office Based Diploma]]> /node/2975 /node/2975#comments We issued a news item with our subscription notices this year in connection with a proposed Office Based Diploma. In that news item, we suggested referral to this website for more details of this proposal. Unfortunately, these details are still in construction and members should keep an eye on this website for further details in due course.


General Wed, 07 Jan 2015 15:34:44 +0000
<![CDATA[Land Registration problems - continued]]> /node/2974 /node/2974#comments We understand that many members are having problems with the new land registration system. Perhaps, if members would identify those problems on this page, it would assist the membership in general to cope with these problems. We recently had an application for the registration of a Standard Security rejected because we had not identified the company number of the lender. We were not previously aware of any requirement for that information. But we know now and so do the readers of this page. MS

General Wed, 07 Jan 2015 15:13:35 +0000
<![CDATA[Land Registration Problems]]> /node/2973 /node/2973#comments At a meeting in Glasgow on 17th December a number of solicitors identified problems with the new land registration regime. These problems included the non—availability of the online system,   wrong information contained in advance notices and difficulties in adjusting with other solicitors the terms of applications for advance notices.  It is clear that there are some teething troubles with the new system. In order to assist the Keeper to resolve ongoing problems we suggest that any members having such problems should notify ourselves by e-mail to so that we can give the Keeper a full picture of difficulties arising.


General Thu, 18 Dec 2014 11:45:57 +0000
<![CDATA[Registration of Title - Final Reminder of Switchover - Get With It]]> /node/2972 /node/2972#comments RoS URGES LAND REGISTRATION APPLICANTS TO PREPARE FOR DEADLINE


Final arrangements for the switchover to the Land Registration etc. (Scotland) Act 2012 on Monday, 8 December are now in place. Registers of Scotland (RoS) has issued a reminder to those affected by the imminent change in land registration that the last day for receipt of 1979 Act applications is Wednesday, 3 December.

The move to the 2012 Act is the biggest change to property registration for a generation and, to accommodate the move to the new IT systems required for the 2012 Act, the Land Register and General Register of Sasines will have to be closed on Thursday 4 and Friday 5 December. As a result, related IT services will also be unavailable on these dates - Registers Direct, eForms and ARTL. Registers of Scotland customer service centres and offices will be open as usual.

All applications made under the 1979 Act must be received by us by 16.30 on Wednesday 3 December. Any applications received after this date will be returned so that they can be completed on the 2012 Act application form and re-submitted. There will be no rejection fee charged.

An appointment system has also been set up to manage personal presentments from Monday 24 November until 4.30pm Wednesday 3 December and more information on booking an appointment at Meadowbank House or Hanover House is available on the dedicated 2012 Act website .

Further information on the practical arrangements for the designated day is available at

A recent research study conducted by RoS with businesses, organisations and advisors involved in land and property revealed that, of those who participated, 80% have started to make preparations for the Designated Day.

For a full timeline on key dates in the run up to the Designated Day and regular updates about the 2012 Act log on to and follow the RoS corporate Facebook ( and Twitter (@RegistersofScot) channels. Links to changes and updates will also be added to the RoS communications group on LinkedIn.

General Tue, 11 Nov 2014 10:22:21 +0000
<![CDATA[Council Meeting (plus 2 nights dinner b&b for £79!) February 2015]]>£79-february-2015 /node/2971 /node/2971#comments Your Council has decided to treat itself to this generous offer from the Salutation Hotel in Perth on 18th and 19th February 2015 when we shall convene the monthly council meeting from 10am on the 19th at the hotel. Members of the Society who are not council members are invited to join this council meeting.

I spoke to the Hotel on 30th October and was advised that there is currently accommodation available for this special offer but that there was no guarantee how long that would be the case and the advice was to book as quickly as possible. Spouses/partners etc. are invited to join the occasion.

To do so you phone the hotel on 01738 630 066 and ask for Lorraine and you also email me at to let me know that you are joining us.


For more information click here:

General Fri, 31 Oct 2014 15:40:56 +0000
<![CDATA[SLAS and LSS - a tale of two societies]]> /node/2970 /node/2970#comments During the past few months I have produced a number of articles in the Law Section of the Scotsman under the barrier of the Scottish Law Agents Society.  It is clear from the correspondence received that most people have no idea who or what is the Scottish Law Agents Society.  I have therefore arranged to publish in the Scotsman on Monday coming 3rd November 2014 a short article explaining the relationship between the Scottish Law Agent Society and the Law Society of Scotland.  It would obviously be excellent for the SLAS profile if Scotsman sales were go through the roof on Monday. This would enormously increase the Society's potential for informing legal thinking in Scotland. So get out there on Monday and buy a Scotsman and another one for your friend. Also, I would very much welcome any constructive comment upon the explanation offered in this article.

Michael Sheridan

General Fri, 31 Oct 2014 11:55:51 +0000
<![CDATA[Land Registration (Scotland) Act 2012]]> /node/2967 /node/2967#comments Whether or not you are prepared for the changes that will take place in registration of titles from 3 December this year onwards, it will still come a s a huge cultural shock when then existing system effectively disappears for two days and then reappears as something completely different. We reproduce below part of an article by Ken Swinton from our Gazette of March 2012.

We are still hoping for effective guidance from the Law Society and professional indemnity insurers.  It seems that the new system -advance notices instead of letters of obligation - is optional but that is probably a mirage.  It is perhaps unlikely that the professional indemnity will cover letters of obligation when the option of advance notice is available. That leaves open, however, the question of undertakings for the production of discharges etc. post settlement.   We gather that any such undertakings are likely to be “on behalf  of” clients.  One difficulty is that we are likely to be concluding missives in traditional terms which do not allow for the new arrangements. Here is what Ken had to say two and a half years ago.


General Fri, 31 Oct 2014 09:28:39 +0000
<![CDATA[URGENT - LSS Consultation of Regulation of Solicitors]]> /node/2966 /node/2966#comments Consultation on Regulation of Solicitors

The following article was intended to reach the membership in time for members’ responses to be returned in time for the closure of the consultation on 10 October 2014.  However, due to a delay in production we have not managed to deliver this edition in time for you to respond to the above consultation before it closes on that date. We have therefore (a) requested an extension of the consultation period and (b) published the above article ion the Society’s website on 6 October with a request for early responses



A consultation was published by the Regulatory Committee of the Law Society on 23rd July 2014 under the above title for response by 10 October 2014. No solicitor from whom I have inquired was aware of or had read the consultation which outlines proposals to regulate entities as well as individual solicitors and to increase the costs of regulation accordingly.

While this consultation bears to have been drawn up within the profession and issued by the Law Society of Scotland, it has to be considered how far that is the case. The Law Society of Scotland is a professional body for solicitors and the Regulatory Committee is a statutory body in which solicitors are excluded from the majority and from the chair.

This objection may seem puerile but the point is that the Regulatory Committee may well be entitled to create a regulatory system but perhaps not in the name or on behalf of Scottish solicitors.

While the simple question which has been asked relates to the regulation of Scottish solicitors, the actual proposals clearly contemplate the regulation of a much wider category of personnel including paralegals and ABS and employees of ABS etc.

The objectives are described as (a) the promotion of the interests of the consumers and of the public, (b)  the promotion of access to justice and competition in the provision of legal service and (c) the promotion and maintenance of  adherence to the professional principles (defined).  At least there is no problem of conflict with the interests of the legal profession because, in fact, there is no mention of the interests of the legal profession.

The paper claims that entities are already recognised in connection with (a) the Master Policy, (b) the rolling programme of compliance inspection, (c) the SLCC action upon service complaints against firms and (d) the rules governing incorporated practices and LLPs but points out that the traditional partnership model is not regulated as an entity.

It is clear why the practice of law should be regulated but not clear why the business arrangement of going in to partnership should be regulated.

The paper describes lawyers worldwide as having moved on from sole practices to legal entities.  In Australia, there is no restriction upon lawyer and non lawyer ownership of legal practices and these are regulated as entities.  That, however, is very much not the case in Scotland and this project therefore appears to seek to promote ABS in to Scotland, to which our Society remains firmly opposed.

There have been partnerships in Scotland for many years without any apparent requirement for entity regulation.

In England, under the Legal Services Act 2007, both individuals and entities are regulated as is the case with chartered accountants and surveyors. They have ABS and we do not.

From the figures presented, the costs of regulating entities as well as practices will result in approximately 22% increase of costs for sole practitioners and either marginal increases or marginal savings for larger businesses.

Council has considered the consultation and proposes the response outlined below. We are looking for input from members for confirmation that this response reasonably represents the views of the membership and also to develop the terms of this response.

Slas Response to Consultation

(a) To propose the extension of the consultation period by a further three months. Considering that the consultation was issued in late July, during the high holiday period and was distracted by the Commonwealth Game ,and by the most successful Edinburgh Festival ever and then by the melt down of the referendum campaigns and, prospectively by the outcome of the most important political issue to affect Scotland in centuries, it is not surprising that many, if not most, solicitors have not addressed the consultation.  Without seeking to condone professional apathy it has to be borne in mind that the consultation suggests fundamental changes in the nature of professional regulation and the omission of proper consultation at this stage, while it makes life easier for those who seek to promote change, it probably stores up problems for the future if many practitioners are to feel that the process has not been inclusive.

(b)    To object to the attribution to the Law Society of a regulatory scheme which has been devised effectively outwith the profession by the Regulatory Committee from which solicitors are excluded from the chair and from the majority.

(c)  To reject the proposed regulation of entities as being inappropriate because it involves the regulation of non-solicitors which is not an activity in which the Law Society or the profession of solicitors should be involved and which may be ultra vires in relation to the current constitution.

(d)     To object to the proposed burdening of sole practitioners with the cost and administration of the regulation of entities when they clearly are not entities themselves.

(e)      To object to the recognition, expressed or implied, of the operation of ABS when these have not been authorised by regulations and when the reasons for the creation of ABS have now been overtaken by the flight from Scotland of the ownership and control of the firms for whom ABS were devised and when their authorisation is likely to further dilute the Scottish identity of the profession in Scotland. The membership of Slas remains opposed to the implementation of ABS,

inter alia,  on grounds of

i.      Inconsistency with professional independence

ii.      The adverse consequences of deregulation in other sectors eg banking

iii.      Consumer detriment in threats to Guarantee Fund and Master policy

iv.      Loss of solicitor control of legal practices

(f) The proposed scheme raises issues which require further consideration in relation to the constitutional contention that the solicitors’ profession is separate from and independent of the legislature which, in this case includes a statutory body such as the Regulatory Committee.  There is no challenge to the statutory competence of the Regulatory Committee to create regulations but it is queried whether these can be characterised as the product of the Law Society which is the professional body for the Solicitors’ profession when they have been issued by perhaps the only public body from which solicitors are excluded from the majority and from the chair. Solicitors are officers of the court and, as such, in terms of the constitutional separation of powers, fall within the judiciary rather than the legislature. This could be relevant if solicitors wished to challenge such regulations but found themselves seeking to challenge their own regulations when, in fact, the regulations had been imposed effectively  from outwith the profession.

Finally, some correspondence which we have received is set out below.


Council Members,

I have now had a closer look at the consultation papers and find that there are two short sets of papers, one entitled Entity Regulation and Charging which simply sets out the proposal to regulate firms etc as well as individual solicitors and to charge for doing so and the other entitled Principle and Outcomes Focused Regulation (POFR) which proposes to replace the lengthy rule book with a short statement of principles but then to add on a much longer book of guidance, to flesh out these principles.

The other two sets of papers are much lengthier. One is a report from the SRA in England describing in 83 scintillating pages complete with pie charts and the like, describing the joys of POFR, as we have all come to know it. The second is a take on the SRA paper by the Nova Scotia Bar in another snappy 70 odd pages. I am certain we would find interesting and helpful material in these reports but, in the time available, I do not think that this can be taken on.

(Name and Address Suplied)

Council Members,

I have looked at the POFR section and make the following comments:-

There was considerable resistance when these were introduces in England & Wales, especially  from small and medium sized firms.  (No surprise there, then.)

Advantages:-               Increased flexibility and consistency; greater public understanding and confidence;  is more client focussed.


Disadvantages:-          Lack of absolute certainty; increased burden, especially for smaller practices; may not be that different to the present rules based approach.


Independent view from the Nova Scotia Barristers’ Society:- is consumer driven;  is an extensive code of conduct being replaced by 10 mandatory principles; form filling reduced by freedom to provide strong quality of service; allows solicitors to meet their objectives while allowing regulator to focus on fair and fair regulation;  comprehensive decision making guides will be produced, which will lead to fairness, transparency & consistency; will encourage creativity. 

(Personally I think the last two contradict each other.) 

NSBS then asked if POFR worked in the public interest and responded as follows:- requires an intelligent authorisation proceed so that only fully authorised firms/individuals deemed fit; requires enhanced supervision of firms to address public interest; requires enforcement to deal with those who do not comply; requires risk criteria to enable regulator to focus on serious risks;  provides fair means for public complaints & early meaningful resolution;  enhances access to justice; enhances access to justice outside the traditional law firm structure.                                                                                                 

(Loud klaxon at this point.)

Neither LSS and Rg. Committee has a fixed view at the moment. Key questions:- should practice rules and guidance the correct approach or should we be moving to a model based on principles and outcomes? 

What are the advantages and disadvantages of these two?

Would POFR help or hinder efforts to protect the interests of consumer and the wider public? 

Does POFR provide fairer base for the regulation of solicitors and legal firms? 

What lessons can be learned from the regulation of other professions and in other legal jurisdictions?

(Name and Address Supplied)



Dear Colleagues,

We presently have rule based regulation so we have a fair idea of what the rules are. In some cases such as the provisions on conflict of interest which is really a series of exceptions.

If we move to principles based regulation we don’t know quite what the rules are and guidance is guidance until retrospectively conduct is deemed to contravene a principle. The FCA keeps getting firms at the moment on breaching the principle of treating customers fairly without bothering to charge the firm with the breach of any detailed rule. I am sure we would face the same.

So arguably the guidance is in fact an enhanced series of rules and even then can be extended without warning. Makes the regulator’s job much easier and ours less certain.

The only questions I think we need to ask around entity regulation are:-

  1. Will it be more expensive/cheaper/ the same?
  2. Will it involve more or less paperwork?

(Name and address Supplied)

Dear Sir,

It is pretty clear that small businesses with their more limited resources will be called upon to bear a disproportionate share of the costs of the new style of regulation. That would be understandable if it were Law Society policy to move towards a profession of large firms and to phase out the smaller entities. It seems unlikely, however, that the private sector of the profession would espouse such a policy, given that the overwhelming majority of Scottish legal firms are small businesses. Also, the UK Government has clearly recognised the value and importance of the role of small businesses in the economic recovery and took the banks to task earlier this year for imposing lending arrangements which were discriminatory towards small businesses (Lord Young reported in the Times 28 January 2014.) The new style of regulation appears to be similarly discriminatory towards small firms.

However the reality is that many, if not most,  of the large and many of the middle sized firms have now emigrated to non-Scottish ownership and may welcome a system which harmonises with the system south of the border.

Moreover the  inhouse sector accounts for one third of the number of Scottish solicitors and the model proposed by the Regulatory Committee is likely to win favour with them as it offers a significant reduction in fees. By contrast the model penalises the sole practitioner the most, in real as well as relative terms and unless a fresh business model can be devised (perhaps comparable to that of the Faculty of Advocates system) it seems that the proposed change will be one more nail in the coffin of the law agent. 

(Name and address supplied)

General Mon, 06 Oct 2014 13:01:54 +0100
<![CDATA[Legal Aid for civil Contact Actions]]> /node/2965 /node/2965#comments We understand that the Scottish Legal Aid Board is considering making changes to the requirements for legal aid for civil contact actions.  We present the current proposals so that practitioners have the opportunity to consider these and make their own suggestions. This document clearly addresses the very practical issues which arise in connection with these difficult actions. Of particular importance is the issue as to the appropriateness of public funding in particular cases. We understanding that there is no such funding for these cases in England and Wales, except in very limited cases. We suggest that you make your suggestions, comments etc. via Slas by email to so that views can be amalgamated and perhaps strengthened.




The Board has detailed guidance in its Civil Legal Assistance Handbook available on the Board’s website at about the approach taken to the assessment of various categories of civil legal aid applications.  The guidance contains general information about applications involving an order relating to parental responsibilities and parental rights. 

All applications must address the attempts made to try to resolve the dispute.  The guidance includes a requirement that detailed information should be provided to show why negotiations have failed, including the provision of copies of any relevant correspondence which may disclose attempts made to resolve matters without the need for litigation.  The guidance for contact orders indicates that we need to be supplied with details about any reasons given by the opponent for withholding contact and details of all attempts made to settle the dispute by agreement, including the provision of documentation to support these attempts.

The guidance has remained unchanged for over 12 years with the exception of the inclusion of the requirement that we be provided with copies of correspondence showing attempts made to settle matters without resorting to litigation.  This aspect was inserted into the guidance following the review of the reasonableness guidance in May 2010.  

Prior to May 2010, basic information was usually supplied in response to questions about the attempts made to settle matters.  This information often comprised one or two word answers such as “negotiations” or “negotiations failed”.  To address the inadequacy of these responses the requirement to provide additional information was inserted in the guidance.  It is however far from routine for such documentation to be supplied with an application for civil legal aid to pursue or defend a contact action.  It is, in reality, not unknown for solicitors submitting legal aid applications to react with surprise, and sometimes negatively, when requested to provide this documentation. 

This is less than satisfactory especially as a key consideration prior to making civil legal aid available is that all possible attempts have been made to settle matters without resorting to public funding.  

It should be a requirement in every application for civil legal aid for contact proceedings that such documents are provided. 


Our continuing programme of work has included a consideration of whether or not the current tests for contact cases remain fit for purpose. This work has been informed by  findings in the high cost case work,  together with findings from the civil best value review which has included examination of stage reports and requests for additional funding in excess of the default case cost limits.

In assessing whether or not civil legal aid should be made available for contact proceedings and in particular we propose that the key issues for examination should be –

·         the attempts made to resolve matters without recourse to litigation;

·         the extent of the dispute between the parties;

·         the practical benefit any individual will get from the proceedings; and

·         what a private fee paying client of moderate means would do if faced with the same set of circumstances.

This list is not intended to detail all of the factors taken into account in assessing whether or not to make civil legal aid available for contact disputes but rather, as stated above, it focusses on certain key issues which assist in identifying whether it is reasonable to make public funding available for the dispute. 

2.1 Attempts to negotiate matters

Public funding should be made available where necessary and where the work to be done is proportionate to the issues involved. Accordingly, consideration has been given to revising the guidance in relation to contact disputes to request  a far greater level of detail about the background history to any disagreement or concerns in respect of contact. This is to  try to ensure that public funding for such disputes is only available where it is clear that litigation is essential to resolve fundamental matters of principle concerning contact.

The Board’s guidance should reflect the approach that may be taken by the private fee paying client of moderate means and we should ensure that all efforts have been made to try to resolve matters without recourse to litigation. Thus, an application should be able to:

A.   make reference to and submit correspondence between parties and their solicitors directed at resolving the issue

B.    detail the approach applicants have taken to any offers to settle a dispute or to take the issue to mediation

C.   detail any offers made by the applicant to try to resolve a dispute through mediation or other dispute resolution method.

None of this suggests that all cases are suitable for mediation but a more focused and concentrated effort on resolving matters before raising a court action is appropriate where potentially extensive public funding is being sought to try to resolve a dispute. 

Funding can be made available for mediation though advice and assistance or through civil legal aid where this is in place.  Trying to resolve matters of consent, whether by way of correspondence or with some form of external support, is not only likely to result in savings for the public purse but will avoid the potential for the type of protracted civil litigation which is not likely to improve relations between parties who have a child or children together.  Rather, such litigation has the potential only to exacerbate any tensions and as such should be discouraged where possible.

Legal aid should therefore only be made available once it is shown that extensive negotiation has taken place or that several attempts have been made to negotiate this matter without receiving any response.  Applicants  must be able to demonstrate that they have entered into such negotiations with the best intention of finding a solution or compromise to avoid litigation.  Mediation should be attempted wherever possible and if this is not considered to be an option full reasons for this should be provided such as in situations involving domestic abuse.

2.2Extent of contact sought

A number of the applications for civil legal aid we receive concern the level or detail of the contact that may be being made available.  Applications are made to increase non-residential contact to residential contact or to extend the period of contact.  Making public funds available to argue the detail of contact arrangements may not be reasonable.  Where contact is being withheld entirely and on the face of it, there is no good reason for this, then litigation may be required should all attempts to negotiate fail but there may be less necessity to provide public funding where frequency or residential aspects alone are being considered.

The Funding Code in England and Wales and the new merits criteria in place for the few family disputes where full representation is likely to be awarded, states that it is not reasonable to make legal aid available to argue detail or frequency issues but rather it will only be made available to argue the principle of contact.  This is very restrictive.  Although we do not suggest that that approach  be adopted in its entirety in Scotland, granting public funding running potentially to several thousand pounds to determine a timetable for contact may not be appropriate.  If there is any level of consent about contact taking place then it is preferable for parties to continue to work together outwith the court setting to put in place established routines with the possibility of increases in such contact being made over a period of time.  It may be  that the availability of legal aid may encourage long, drawn out and acrimonious cases which could potentially be resolved out of court if funding was not so readily accessible.

Legal aid should only be available for litigation if the areas of disagreement between the parties are such that any litigation will bring about a significant improvement in the arrangements that are in place in respect of the child/children and make a significant positive contribution to the best interest of the child/children.

2.3Comparison with a private fee paying client

Sustainable Future for Legal Aid stated, “legally aided clients should not be disadvantaged compared to those meeting their own legal costs, nor should they have an unfair or disproportionate advantage. This is sometimes referred to as increasing ‘private client reality’”.

Civil legal aid is in place so that those who cannot afford to pay for their own legal assistance are put on a “level playing field” with those who can.  This comparison however has to be made against the individual with moderate resources, meeting their own fees privately and for whom the cost of bringing litigation privately could not be done without some degree of sacrifice.  In view of this, in assessing applications for civil legal aid for contact proceedings careful consideration needs to be given to the extent of litigation that would be entered into by parties were they required to pay for the litigation themselves: the private client reality.

As Lord Reed noted in NJDB –v- JEG & another, it was inconceivable that any reasonable person would expend resources on the scale utilised in that case on a dispute over contact if the money was coming out of his or her own pocket.  While the costs incurred in NJDB were exceptionally high, there remain a substantial number of cases funded with public money where the matter has been before the court for many years and where the costs of ongoing litigation would easily be beyond the resources of private fee paying clients. 

Contact with a  child is a very important matter but the extent of the litigation that should be entered into to resolve this issue needs to be examined closely. 

There can be a number of factors which lead to long running cases.  These include:

·         the behaviour of individual parties

·         the approach that the court takes to try to resolve the dispute

·         the use of bar reports and psychologists

·         the monitoring of supervised contact

·         the court allowing contact in incremental stages and monitoring this through multiple child welfare hearings.

What is however undeniable, particularly in light of Lord Reed’s comments, is that it should not be the case that extensive public resources are expended on disputes that would not have been funded privately or that would not have followed the particular court route being followed were it not for the fact that one or more party could access public funding. 

The assessment process should be designed to put the applicant in the same position as   someone for  whom the cost of private funded  litigation could be met, but not without some degree of sacrifice.


We are currently designing an holistic review of applications for civil legal aid by case type.  The pilot will consider a broad sample of contact applications where more than one party is seeking public funding.  All the applications for civil legal aid applicable to any one court action will be considered. 

This review will commence at the point any second or subsequent application for civil legal aid is submitted in respect of one court case.  Where an individual is granted legal aid to pursue a contact dispute (subject to the current and potentially amended criteria for such actions) and a subsequent application for civil legal aid is made by, for example, a defender or a third party minuter in the proceedings then all relevant applications will be examined and re-examined.  Depending on the information available, it may be that later applications are refused with steps also taken potentially to terminate any earlier grants of civil legal aid for the case. 

We have found in a previous review of  high cost cases, that information provided in one application may be wholly contradicted by  information in a second application from a different party in the action.  While different views and perceptions of events in family disputes are by no means unusual, it is  concerning when information emerges in a second application that allege and provide third party evidence of a serious underlying issue/s likely to impact on the court’s approach to contact including –

·         frequent and habitual drug use;

·         social work department involvement; and

·         police involvement.

These factors are not always drawn to the Board’s attention but in assessing prospects for success they could be highly relevant.  Equally in defender applications, what can, at first blush, appear to be a reasonable basis for opposing contact can be contradicted by information available in the opponent’s application.

This pilot is likely to involve consideration of a minimum of 100 cases (not applications).  This should allow the opportunity for examination of the issues in dispute in a broad range of cases.  This work will allow an examination of a broad range of issues to help to determine whether the litigation is necessary and the costs proportionate in bringing the issues involved before the court.

General Thu, 02 Oct 2014 16:12:12 +0100