Description
The defenders, a Roman Catholic order of religious women, sought an order for expenses from the Scottish Legal Aid Board (SLAB) for an abandoned action of reparation for historic abuse, raising the issue of the meaning of 'financial hardship' in
s. 19(3)(b), Legal Aid (Scotland) Act 1986 (as amended to exclude the term 'severe' by the
Legal Profession and Legal Aid (Scotland) Act 2007).
Motion refused. Held: 'financial hardship' is a more modest hurdle than 'severe financial hardship', which requires the court to consider the whole financial position of the party seeking the order. This includes capital, debts, income, and the nature of the capital and debt. In particular it may be of significance whether investments are easily realisable. The nature of the party seeking the order is irrelevant. However, where an unassisted party's sole purpose is the provision of charity and payment of an expenses award would cause it to be materially less able to fulfil that purpose, then that would amount to financial hardship. In the present case, it was clear that the defenders had substantial capital reserves to meet contingencies such as the judicial expenses claimed for and therefore failed to fulfil the criterion in s. 19(3)(b). Although not required, the court made the following general observations regarding the approach to s. 19(3)(c): first, it is relevant to have regard to the circumstances in which legal aid was granted and in particular whether objections were lodged by the party seeking the order; and, secondly, it is also relevant to have regard to whether the party seeking the order had no choice but to enter the process.
