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Act and Regulations

The law in relation to the taking of decisions in relation to any application for legal aid is set out in the Act and Regulations. There is no provision in the Act that enables us  to refuse to grant legal aid because a person has not paid fees that are due to a private solicitor, even if the legal aid sought is in respect of services provided by that private solicitor.

Regulation 8(3) provides that the expense of taking any action, which is outside the scope of the certificate, should not fall on us to pay. In addition, Regulation 11(2) provides that a legal aid certificate, which is granted after the commencement of the proceedings in respect of which it is sought, shall not be extended to cover any action taken or cost incurred prior to the issue of the certificate – in other words, legal aid is never granted retrospectively.

We cannot pay to a private solicitor any costs incurred by that private practitioner prior to the grant of legal aid. Nor can we provide the type of undertaking normally sought by private solicitors in respect of costs they incur.

Because of this we have to consider:

  • whether or not an application can be made for legal aid: and
  • whether or not services can be provided to the individual.