The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003

CHAPTER II SHERIFF COURT CIVIL FEES (DEFENDED)

Notes on the operation of chapter II

Payment of the fees set out in the table in this chapter is subject to the following provisions.

1.  In assessing any account lodged with the Board on a solicitor and client, third party paying basis, regard shall be had to–

(a) what would be considered reasonable in a judicial taxation, on a party and party basis, for conducting the proceedings in a proper manner; and

(b) any work or expense specifically sanctioned, certified or authorised by the Board.

2.  It shall be competent for the Auditor to disallow any fee which he shall judge irregular or unnecessary.

3.  In the taxation of accounts where counsel is employed–

(a) counsel’s fees are allowed only where the Board has sanctioned the employment of counsel;

(b) except on cause shown, fees to counsel for only two consultations in the course of the cause are allowed; and

(c) except on cause shown, fees to counsel shall not be payable for attendance at hearings which are routine or procedural or which do not advance the cause.

4.  A fee in respect of a Minute of Amendment is only payable to the solicitor bringing the amendment where–

(a) the Minute was necessary due to a new development in the case;

(b) relevant information which was previously unknown to the solicitor came to the solicitor’s attention; or

(c) the work could not have been done at an earlier stage in the proceedings.

5.  The fees set out in this chapter include–

(a) all correspondence, telephone calls or communication of whatever nature with the Board;

(b) all fees incurred by any other solicitor in relation to work done in any part of the case, which shall not be a chargeable outlay; and

(c) copyings,

and include not only the work expressly set out within the terms of each paragraph but also (unless specifically provided for) all meetings, correspondence, precognitions, negotiation ancillary thereto, and all posts and incidental expenses.

6.  The fee under paragraph 1(d) is payable on each transfer of agency but is not payable where an advice and assistance account in respect of the same matter is charged to the Board or the client. Where there is a transfer of agency, the solicitor from whom agency is transferred shall be paid the whole fee for work done by that solicitor in respect of any paragraph or sub-paragraph; and where work done under any paragraph or sub-paragraph is only partially completed by that solicitor, the fee payable in respect of that work shall be apportioned equally between the solicitor from whom agency is transferred and the solicitor to whom agency is transferred.

7.  A fee is payable under either paragraph 2(a) or paragraph 2(b); both fees cannot be claimed. The fee under paragraph 2(b) is only payable where it is unlikely that the action would have settled without the input of the solicitor and the solicitor certifies that settlement took place in consequence of one or both of the following circumstances:–

(a) settlement was expressed within an extraneous Minute of Agreement or a Joint Minute (other than a Joint Minute for dismissal or decree simpliciter) encompassing an outcome materially different from the terms of any interim order of court in force immediately prior to the execution of that Joint Minute or Minute of Agreement;

(b) settlement followed upon an exercise of sustained negotiation involving a significant level of discussion between solicitor, the client or the opponent (or their agent) taking place after the conclusion of the work payable under paragraph 1 and clearly documented on the file for perusal, if required, by the Board.

8.  The factors that the Auditor shall take into account in assessing a claim based on paragraph 2(b) will be a lengthy meeting or series of meetings or correspondence or other communication between the parties which, together, justify the conclusion that, but for this significant work, the case would have proceeded further at potential cost to the Fund or the parties.

9.  The fee under paragraph 3(a) is payable only in relation to time engaged in the conduct of the hearing and any continued hearing. The conduct of the hearing is the actual time involved in the substantive argument and does not include any formal attendance at a hearing for the purpose of seeking an adjournment or other formal attendance not devoted to the stating of the argument.

10.  The fee payable under paragraph 3(a)(i) includes the first quarter hour of argument, even if involving appearances on different dates. The fee is not chargeable on a quarter hour block but rather on the total number of minutes taken up in argument at a hearing or continued hearings.

11.  The fee payable under paragraph 4(a) includes the notarial fee unless, on cause shown, the affidavit cannot be notarised within the principal agent’s firm, in which case a fee of one unit is payable to the external notary. Charges levied by notaries outwith the United Kingdom shall be paid according to the circumstances of the case.

12.  The fees under paragraph 4(b), (c), (d) and (e) are payable only once in any case.

13.  The fee under paragraph 4(e) is payable only where the settlement conference or negotiation takes place in one location or by telephone. This fee is payable in relation to one meeting (including a continued meeting) in relation to any case and is payable only where–

(a) negotiation commences at least 14 days prior to the proof; and

(b) the fee under paragraph 4(f) is not charged in the case,

and where this fee is claimed the work done should be clearly documented on the file, for perusal, if required, by the Board.

14.  The fee under paragraph 4(f) is payable only where no other attendance fee is charged in relation to any appearance at which authority is interponed to the Joint Minute and is not payable in addition to any fee under paragraph 5(a)(ii) to (iii).

15.  The fee under paragraph 5(a) is only payable once in any case and the fee under paragraph 5(a)(iii) includes preparation for a debate on evidence.

16.  The fee under paragraph 5(b) is payable only in respect of a debate in law.

17.  The fee payable under paragraph 5(c) includes all continued diets and a further fee under paragraph 5(c) is only payable in the event of a further and distinct Child Welfare Hearing being fixed by the court in response to further identifiable circumstances.

18.  Notwithstanding paragraph 5(e), the taking of an appeal to the Sheriff Principal is a distinct proceeding and shall require a separate application for civil legal aid and nothing in this table shall imply otherwise.

19.  The fee under paragraph 6 is payable on the total time engaged, even if on different occasions and is payable cumulatively between waiting and conduct time. The actual time over the proceedings incurred in waiting and conduct of hearings shall be added together and rounded up to the nearest 15 minutes.

20.  The fees payable under this chapter include all travel to court, except as otherwise provided for by paragraph 21.

21.  Excess travel time, in addition to the fees payable under this chapter, is payable at 0.8 units per 15 minutes and is allowable only in relation to an attendance at court, subject to the following conditions:–

(a) the solicitor claiming travel time is a solicitor with whom the client has had significant contact in relation to the conduct of the case;

(b) the solicitor’s attendance was necessary for the advancement of the case;

(c) the distance travelled is at least 10 miles in each direction from the solicitor’s normal place of work (and no travel time shall be payable in respect of the first 10 miles travelled in each direction);

(d) when payment for travel time is claimed for more than one case, the time shall be apportioned equally between the various cases for which the solicitor attended court (including non legally aided cases); and

22.  Travel expenses may only be incurred where travel time is chargeable.

23.  Where it would be more cost effective to travel by public transport the solicitor shall do so.

24.  Waiting time in a case shall only be payable in respect of the hearings which are referred to in paragraph 5 of the table of fees in this chapter and shall be payable–

(a) from the time appointed by the court for the Hearing; or

(b) from the conclusion of any other business ending prior to the case (including non legal aid cases),

whichever is the shorter.

Fee Payable	Units
1. Instruction Fee–
(a) All work from the taking of instructions to the conclusion of proceedings where no fee under paragraph (b) is allowable.	10
(b) To cover all work from the taking of instructions to commence or defend proceedings until the date appointed for the lodging of defences or the making of an order dispensing with written defences (except as specifically provided for below).	20
(c) Counterclaim – Additional fee where a counterclaim is lodged.	4
(d) Transfer of Agency – receiving instructions after a transfer of agency, where defences have, or should already have been, lodged, to include familiarising the incoming agent with the file.	8
2. Progress Fees–
(a) To cover all additional work (including adjustment, attendance at Options Hearing and Continued Options Hearing) from the conclusion of the work in Paragraph 1 until the allowance of a Proof or Debate (except as specifically provided below)	19
or
(b) To cover all additional work (e.g. negotiation, discussion, voluntary disclosure and all meetings and correspondence) involving the active participation of agents and resulting, prior to the allowance of a proof or debate, in the negotiated settlement of the action (except as specifically provided below).	19
3. Motions and Minutes etc.–
(a) Fee to cover drawing, intimating, lodging, receiving and opposing (if so advised) any reponing note or written motion or minute (including Motions for interim orders) for any party–
(i) where opposed or unopposed and involving a hearing before the Sheriff, to include the first quarter hour of argument, even if involving appearances on different dates	6
(ii) where unopposed and not involving a hearing	2
(iii) thereafter attendance fee per quarter hour, including any continuation of the diet ordered by the Sheriff to allow a minute of amendment to be received and answered	1
(b) Fee to cover drawing, or receiving Minute of Amendment, in addition to motion fee, if appropriate–
(i) where assisted person is party bringing amendment and no answers lodged;	4
(ii) where amendment is sought by another party and no answers lodged by assisted person;	2
(iii) where answered, to include adjustment as required, for any party.	6
(c) Specification of Documents, in addition to motion fee, if appropriate–
(i) fee to cover drawing, intimating and lodging Specification	4
(ii) fee to opposing solicitor.	2
4. Miscellaneous Fees
(a) Affidavits – to framing all necessary affidavits, per sheet.	1
(b) Contact Arrangements – fee arranging or attempting to arrange interim contact arrangements where appropriate.	6
(c) Notice to Admit – preparing and serving/receiving a Notice to admit and serving a counter notice if required.	4
(d) Joint Minute of Admissions – preparing and/or considering and executing a joint minute of admissions with a view to avoiding unnecessary evidence or disposing of some (but not all) craves.	4
(e) Settlement conference/negotiation – participating in a settlement conference or negotiation after the allowance of a proof or debate where the solicitor making the claim is authorised in advance by the client to participate, per quarter hour (subject to a maximum charge of 8 units).	1
(f) Extra Judicial Settlement – fee to cover work to formalise settlement.	8
(g) Minute of Agreement – to drawing/revising Minute of Agreement necessary to accomplish or record overall settlement per sheet (subject to a maximum charge of 8 units).	1
(h) Report Fee – to instructing (if required) perusing and taking instructions on any report extending to at least four sheets obtained from a professional or expert person, either–
(i) where the report is commissioned by the solicitor for the assisted person; or	4
(ii) the report is commissioned by order of Court.
(i) Additional Procedure – additional fee where Additional Procedure invoked (to include attendance at any procedural hearing(s).	4
(j) Additional fee where the action involves a third party minuter at any stage.	4
5. Preparation
(a) Preparation for proof fee
(i) If action settled or abandoned not later than 14 days before the diet of proof.	18
(ii) Where the action settles within 14 days of, or on the day of, or after the diet of proof but without evidence being lead.	24
(iii) In any other case where evidence is lead (to include settling with witnesses and enquiring for cause at avizandum (if required).	36
(b) Preparation for Debate– Fee to cover all work in connection with preparing for any debate, where such debate takes place prior to proof or Proof Before Answer.	8
(c) Preparation for Child Welfare Hearing – Fee to cover all work preparing for Child Welfare Hearing.	4
(d) Commission to Take Evidence – Fee to cover all work preparing for the taking of evidence or executing specification on open commission or proceeding as provided in (iii) below–
(i) For solicitor arranging commission.	8
(ii) For opposing solicitor.	4
(iii) If optional procedure adopted-fee for each person on whom specification is served.	1
(iv) Fee for perusing documents recovered-per quarter hour.	1
(e) Preparing for Appeal – Fee to cover all work preparing for an appeal to the Sheriff Principal (to include marking appeal or noting marking of appeal).	12
6. Conduct & Waiting
To waiting for or attending by solicitor at the conduct of any hearing referred to in paragraphs 5(a) to (e) above (including any continued hearing and ancillary hearing on expenses or other miscellaneous subsequent hearing) per quarter hour.	1