In accordance with section 14(1C) and (1D) of the Legal Aid (Scotland) Act 1986 Scottish Ministers have issued a Direction to the Scottish Legal Aid Board ("the Board") for the granting of civil legal aid in exceptional cases concerning defamation or verbal injury cases.
Where a Direction is issued the Board must comply with it.
Civil legal aid is generally not available for defamation and verbal injury proceedings and the Direction will not remove that general exception. The Direction sets out additional criteria, on which the Board is required to satisfy itself when considering an application for civil legal aid, for defamation and verbal injury actions. These criteria are in addition to the normal statutory tests of probable cause, reasonableness and financial eligibility.
These additional criteria are that the case, to which the application refers, must have a wider public interest or convincing evidence that there are other exceptional circumstances meaning, that without public funding for representation, it would be practically impossible for the applicant to bring or defend the proceedings leading to obvious unfairness.
In considering the exceptional circumstances the Board is also required to be satisfied that the degree of exceptionality is the same or approximately the same as the facts found in the case of Steel and Morris v UK Kingdom ([2005] ECHR 103).