Legal Aid
Small Claims

Legal Aid
People often worry about consulting a Solicitor because they believe that they will not be able to afford his fees. Many people do not realise they may be eligible for Legal Aid, which might mean they would not have to pay their Solicitor anything or only a proportion of the costs involved.

There are two types of legal aid in Scotland. First there is Advice & Assistance which is available for both civil and criminal matters. Secondly, individuals can apply for Legal Aid to allow them to raise or defend a Civil Court Action or to provide representation for a criminal trial.

When a person first seeks the services of a Solicitor, the Solicitor will normally assess that person's eligibility for Legal Aid under the Advice & Assistance scheme. There are complicated rules relating to both income and capital and allowances are given if you have a partner, child or dependent relatives living with you. You will need to disclose to your solicitor your earnings and any savings.

Legal Aid provided under the Advice & Assistance scheme does not normally pay for a Solicitor to represent you at Court, although in some cases, mainly criminal, it may do. Ordinarily, to obtain legal aid funding for representation at Court a person must complete a further legal aid application. The paperwork required for this is much more complicated than that for Advice & Assistance purposes.

Due to a change in legislation, if you were a recipient of Legal Aid between 1988 and 1999, you may be entitled to a refund. The solicitor who acted for you will assist you to recover any monies due, at no extra charge to you. If, for any reason, the original solciitor is no longer available to deal with the matter, then you can contact a new solicitor who will assist you to reclaim, again at no extra charge to you. Please contact the Scottish Legal Aid Board helpline on 0131 225 4042 to find out more about this.
BACK TO THE TOP

Small Claims
If you have a legal dispute with someone, or if there is a financial claim in which you are involved, then you may find yourself as a party in a Small Claim Action in the Sheriff Court.

At the moment as long as the amount at issue is no more than seven hundred and fifty pounds, any litigation can only be dealt with under the small claims procedure, which is designed to be a simplified form of court action. The idea is that in small claims, the amount of time, money and effort spent on resolving the dispute should not become as enormous as it can in the ordinary civil courts, in which costs and expenses can run into thousands of pounds, often more than the sum being fought over. The government are consulting on proposals to increase the limit substantially.

In the small claims procedure, court expenses are severely limited. If you win your case, you will get no more than seventy five pounds of expenses, plus certain outlays you may have made, on top of the sum of money you are suing for. In other words, if you hire a lawyer to fight the case for you, his or her full bill will not fall on the losing party to pay. You may have to meet part of it from your own resources. However, if the sheriff presiding in the court thinks that your opponent has put up a ridiculous defence, or has acted improperly, full costs may exceptionally be awarded.

Remember, although you may be entitled to legal advice and assistance in getting preliminary help from a solicitor, civil legal aid is not available to pay for a lawyer to conduct the case in court.

If you wish to raise or defend a small claim, do see a solicitor first. If you are the pursuer, you must lodge the small claim form outlining the basis of your case at the sheriff court with the relevant warranting fee. A copy of the form must then be served on the defender, and if the defender wants to contest the case, both parties will come to the preliminary hearing fixed by the court. At that hearing, the sheriff tries to find from both parties what issues are to be resolved or proved, and should try to look into the case to see if the parties can be brought to a resolution of the matter there and then. If they cannot, a full hearing is fixed for a further date, and evidence of witnesses and any relevant documents will be brought to the attention of the court.

After the full hearing, the sheriff makes a judgment in favour of one party or another, together with an order in respect of interest and expenses. If the sheriff makes an error in law, the disappointed party can appeal.

Although the small claim system was designed to avoid the parties' need for legal representation, experience has shown that the party without a lawyer is often at a distinct disadvantage. See your solicitor first, if you are going to be involved in a small claim.
BACK TO THE TOP