Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Ordinary Cause Rules Amendment) (Taxation of Judicial Expenses) 2019

Citation and commencement, etc.

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Ordinary Cause Rules Amendment) (Taxation of Judicial Expenses) 2019.

(2) It comes into force on 29th April 2019.

(3) A certified copy is to be inserted in the Books of Sederunt.

Application

2.—(1) Subject to sub-paragraphs (2) and (3), the amendments effected by this Act of Sederunt apply in respect of proceedings commenced on or after the coming into force of this Act of Sederunt.

(2) The amendments effected by paragraphs 3(6) and 5(3) apply in respect of proceedings where the date of the final judgment (as defined in those provisions) is on or after the coming into force of this Act of Sederunt.

(3) The amendments effected by paragraphs 3(7), 4(6), 4(7), 4(8), 4(9), 4(10), 4(11), 4(13) and 5(4) apply in respect of accounts lodged for taxation on or after the coming into force of this Act of Sederunt.

(4) For the purpose of sub-paragraph (1)—

(a) proceedings in the Sheriff Appeal Court; and

(b) proceedings in the Inner House of the Court of Session under Chapters 38, 39 or 40 of the Rules of the Court of Session 1994, other than on a remit from the Sheriff Appeal Court,

are distinct proceedings.

Amendment of the Ordinary Cause Rules 1993

3.—(1) The Ordinary Cause Rules 1993(1) are amended in accordance with this paragraph.

(2) In rule 7.4 (decree for expenses)—

(a) the existing rule becomes paragraph (1);

(b) after paragraph (1), insert—

“(2) Where the pursuer elects, in the minute for decree, to claim expenses comprising—

(a) the inclusive charges set out in Part 1 of Table 1 in schedule 4 of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019; and

(b) outlays comprising only—

(i) the court fee for warranting the initial writ;

(ii) postal charges incurred in effecting, or attempting to effect, service of the initial writ by post; and

(iii) where applicable, a sheriff officer’s fee for service of the initial writ,

the sheriff may grant decree for payment of such expenses without the necessity of taxation.”.

(3) In rule 27A.1 (pursuers’ offers – interpretation)(2), for the definition of “fees” substitute—

““charges” means charges for work carried out by the pursuer’s solicitor, and includes any additional charge;”.

(4) In rule 27A.9 (extent of defender’s liability), for “fees” in both places where it appears substitute “charges”.

(5) In rule 32.1 (taxation before decree for expenses)—

(a) the existing rule becomes paragraph (1);

(b) after paragraph (1) insert—

“(2) Paragraph (1) applies subject to rule 7.4(2).”.

(6) For rule 32.1A (order to lodge account of expenses)(3), substitute—

“Time for lodging account of expenses

32.1A.— (1) A party found entitled to expenses must lodge an account of expenses in process—

(a) not later than four months after the final judgment; or

(b) at any time with permission of the sheriff, but subject to such conditions, if any, as the sheriff thinks fit to impose.

(2) Where an account of expenses is lodged by the Scottish Legal Aid Board in reliance on regulation 39(2)(a) of the Civil Legal Aid (Scotland) Regulations 2002(4), paragraph (1)(a) applies as if the period specified there is 8 months.

(3) In this rule, “final judgment” has the meaning assigned by section 136(1) of the Courts Reform (Scotland) Act 2014(5).”.

(7) For rule 32.3 (procedure for taxation) and rule 32.4 (objections to auditor’s report), substitute—

“Diet of taxation

32.3.— (1) Where an account of expenses awarded in a cause is lodged for taxation, the sheriff clerk must transmit the account and the process to the auditor of court.

(2) Subject to paragraph (3), the auditor of court must fix a diet of taxation on receipt of—

(a) the account of expenses;

(b) the process;

(c) vouchers in respect of all outlays claimed in the account, including counsel’s fees; and

(d) a letter addressed to the auditor of court—

(i) confirming that the items referred to in sub-paragraph (c) have been intimated to the party found liable in expenses; and

(ii) providing such information as is required to enable the auditor of court to give intimation to the party found liable in expenses in accordance with paragraph (4)(b).

(3) The auditor of court must fix a diet of taxation where paragraph (2)(c) or (d), or both, have not been complied with.

(4) The auditor of court shall intimate the diet of taxation to—

(a) the party found entitled to expenses; and

(b) the party found liable in expenses.

(5) The party found liable in expenses may, not later than 4.00 pm on the fourth business day before the diet of taxation, intimate to the auditor of court and to the party found entitled to expenses particular points of objection, specifying each item objected to and stating concisely the nature and ground of objection.

(6) Subject to paragraph (7), if the party found liable in expenses fails to intimate points of objection under paragraph (5) within the time limit set out there, the auditor of court must not take account of them at the diet of taxation.

(7) Where a failure to comply with the requirement contained in paragraph (5) was due to mistake, oversight or other excusable cause, the auditor of court may relieve a party of the consequences of such failure on such conditions, if any, as the auditor thinks fit.

(8) At the diet of taxation, or within such reasonable period of time thereafter as the auditor of court may allow, the party found entitled to expenses must make available to the auditor of court all documents, drafts or copies of documents sought by the auditor and relevant to the taxation.

(9) In this rule, “business day” means any day other than a Saturday, Sunday or public or court holiday.

Auditor’s statement

32.3A.— (1) The auditor of court must—

(a) prepare a statement of the amount of expenses as taxed;

(b) transmit the process, the taxed account and the statement to the sheriff clerk; and

(c) on the day on which the documents referred to in sub-paragraph (b) are transmitted, intimate that fact and the date of the statement to each party to whom the auditor intimated the diet of taxation.

(2) The party found entitled to expenses must, within 7 days after the date of receipt of intimation under paragraph (1)(c), send a copy of the taxed account to the party found liable in expenses.

(3) Where no objections are lodged under rule 32.4 (objections to taxed account), the sheriff may grant decree for the expenses as taxed.

Objections to taxed account

32.4.— (1) A party to a cause who has appeared or been represented at a diet of taxation may object to the auditor of court’s statement by lodging in process a note of objection within 14 days after the date of the statement.

(2) The party lodging a note of objection is referred to in this rule as “the objecting party”.

(3) On lodging the note of objection the objecting party must apply by motion for an order—

(a) allowing the note of objection to be received; and

(b) allowing a hearing on the note of objection.

(4) On the granting of the order mentioned in paragraph (3), the objecting party must intimate to the auditor of court—

(a) the note of objection; and

(b) the interlocutor containing the order.

(5) Within 14 days after receipt of intimation of the items mentioned in paragraph (4) the auditor of court must lodge in process a statement of reasons in the form of a minute stating the reasons for the auditor’s decision in relation to the items to which objection is taken in the note.

(6) On the lodging of the statement of reasons the sheriff clerk must fix a hearing on the note of objection.

(7) At the hearing, the sheriff may—

(a) sustain or repel any objection or remit the account of expenses to the auditor of court for further consideration; and

(b) find any party liable in the expenses of the procedure on the note of objection.

Interest on expenses

32.5.— (1) Paragraph (2) applies where the sheriff grants decree for payment of—

(a) expenses as taxed; and

(b) interest thereon.

(2) Without prejudice to the sheriff’s other powers in relation to interest, the decree pronounced may require the party decerned against to pay interest on the taxed expenses, or any part thereof, from a date no earlier than 28 days after the date on which the account of expenses was lodged.”.

Amendment of the Rules of the Court of Session 1994

4.—(1) The Rules of the Court of Session 1994(6) are amended in accordance with this paragraph.

(2) In rule 19.1 (decrees in absence)—

(a) in paragraph (3)(b)(ii), for “under Part I of Chapter III of the Table of Fees in rule 42.16” substitute “in accordance with paragraph (3A)”;

(b) after paragraph (3), insert—

“(3A) Where the pursuer elects to claim expenses comprising—

(a) the inclusive charge set out in Part 1 of Table 1 in schedule 2 of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019; and

(b) outlays not exceeding £471.50 (excluding value added tax),

the court may grant decree for payment of such expenses without the necessity of taxation.”.

(3) In rule 34A.1 (pursuers’ offers – interpretation)(7), for the definition of “fees” substitute—

““charges” means charges for work carried out by the pursuer’s solicitor, and includes any additional charge;”.

(4) In rule 34A.9 (extent of defender’s liability)(8), for “fees”, in both places where it appears substitute “charges”.

(5) The heading of Chapter 42 (taxation of accounts and fees of solicitors) becomes “TAXATION OF ACCOUNTS, ETC.”.

(6) In rule 42.1(2) (remit to the Auditor)(9)—

(a) at the end of sub paragraph (a) add “or”;

(b) in sub-paragraph (b)—

(i) omit “if he has failed to comply with sub paragraph (a),”; and

(ii) for “impose; and”, substitute “impose.”; and

(c) omit sub-paragraph(c).

(7) After rule 42.1(2) insert—

“(2A) On lodging an account under paragraph (2)(a) or (b), any party found entitled to expenses must intimate a copy of it forthwith to the party found liable to pay those expenses.”.

(8) In rule 42.2 (diet of taxation)(10), in paragraph (7) after “diet of taxation”, insert “or within such reasonable period of time thereafter as the Auditor may allow,”.

(9) In rule 42.3 (report of taxation)(11), for paragraph (1) substitute—

“(1) The Auditor must—

(a) prepare a statement of the amount of expenses as taxed;

(b) transmit the process of the cause, the taxed account and the statement to the appropriate Department of the Office of Court; and

(c) on the day on which the documents mentioned in sub-paragraph (b) are transmitted, intimate that fact and the date of the statement to each party to whom the Auditor intimated the diet of taxation.”.

(10) In rule 42.4 (objections to report of the auditor)(12), in paragraph (1)—

(a) for “report of the Auditor” substitute “Auditor’s statement”;

(b) for “date of the report” substitute “date of the statement”.

(11) After rule 42.4, insert—

“Interest on expenses

42.4A.— (1) At any time before extract of a decree for payment of expenses as taxed by the Auditor the court may, on the application of the party to whom expenses are payable, grant decree against the party decerned against for payment of interest on the taxed expenses, or any part thereof, from a date no earlier than 28 days after the date on which the account of expenses was lodged.

(2) Paragraph (1) is without prejudice to the court’s other powers in relation to expenses.”

(12) In rule 42.5 (modification or disallowance of expenses), omit paragraph (2).

(13) In rule 42.7 (taxation of solicitors’ own accounts)(13)—

(a) for paragraph (7), substitute—

“(7) The Auditor must—

(a) prepare a statement of the fees and outlays as taxed;

(b) transmit the statement and the taxed account to the appropriate Department of the Office of Court; and

(c) send a copy of the statement to the solicitor and the client.”;

(b) in paragraph (7A), for “report” substitute “statement”; and

(c) in paragraph (8), for “report of the Auditor” substitute “Auditor’s statement”.

(14) Omit Part II of Chapter 42 (fees of solicitors).

(15) After Part III of Chapter 42 (fees in speculative causes), insert—

“PART IV REMUNERATION OF REPORTERS

Remuneration of reporters

42.18.— (1) This rule applies where any matter in a cause is remitted by the court, at its own instance or on the motion of a party, to a reporter or other person to report to the court.

(2) The party liable to the reporter or other person for payment of that person’s fee, and reimbursement of that person’s outlays, is—

(a) where the court makes the remit at its own instance, the party so ordained by the court;

(b) where the court makes the remit on the motion of a party, that party.

(3) The solicitor for the liable party is personally liable in the first instance for payment of such fee and outlays.

(4) This rule applies subject to—

(a) any other provision in these Rules;

(b) any order of the court; or

(c) any agreement between a party and that party’s solicitor.”.

Amendment of the Sheriff Appeal Court Rules

5.—(1) The Act of Sederunt (Sheriff Appeal Court Rules) 2015(14) is amended in accordance with this paragraph.

(2) Omit rule 19.2 (additional fee) and rule 19.2A (sanction for the employment of counsel)(15).

(3) For rule 19.3 (order to lodge account of expenses), substitute—

“Time for lodging account of expenses

19.3.— (1) A party found entitled to expenses must lodge an account of expenses in process—

(a) not later than 4 months after the final judgment; or

(b) at any time with permission of the court, but subject to such conditions, if any, as the court thinks fit to impose.

(2) Where an account of expenses is lodged by the Scottish Legal Aid Board in reliance on regulation 39(2)(a) of the Civil Legal Aid (Scotland) Regulations 2002(16), paragraph (1)(a) applies as if the period specified there is 8 months.

(3) In this rule, “final judgment” has the meaning assigned by section 136(1) of the Courts Reform (Scotland) Act 2014(17).”.

(4) For rule 19.4 (procedure for taxation of expenses) and rule 19.5 (objections to taxed account), substitute—

“Diet of taxation

19.4.— (1) Where an account of expenses is lodged for taxation, the clerk must transmit the account and the process to the auditor of court.

(2) Subject to paragraph (3), the auditor of court must fix a diet of taxation on receipt of—

(a) the account of expenses;

(b) the process;

(c) vouchers in respect of all outlays claimed in the account, including counsel’s fees; and

(d) a letter addressed to the auditor of court—

(i) confirming that the items referred to in sub-paragraph (c) have been intimated to the party found liable in expenses; and

(ii) providing such information as is required to enable the auditor of court to give intimation to the party found liable in expenses in accordance with paragraph (4)(b).

(3) The auditor of court may fix a diet of taxation where paragraph (2)(c) or (d), or both, have not been complied with.

(4) The auditor of court must intimate the diet of taxation to—

(a) the party found entitled to expenses; and

(b) the party found liable in expenses.

(5) The party found liable in expenses must, not later than 4.00 pm on the fourth business day before the diet of taxation, intimate to the auditor of court and to the party found entitled to expenses particular points of objection, specifying each item objected to and stating concisely the nature and ground of objection.

(6) Subject to paragraph (7), if the party found liable in expenses fails to intimate points of objection under paragraph (5) within the time limit set out there, the auditor of court must not take account of them at the diet of taxation.

(7) Where a failure to comply with the requirement contained in paragraph (5) was due to mistake, oversight or other excusable cause, the auditor of court may relieve a party of the consequences of such failure on such conditions, if any, as the auditor thinks fit.

(8) At the diet of taxation, or within such reasonable period of time thereafter as the auditor of court may allow, the party found entitled to expenses must make available to the auditor of court all documents, drafts or copies of documents sought by the auditor and relevant to the taxation.

(9) In this rule, a “business day” means any day other than a Saturday, Sunday or public or court holiday.

Auditor’s statement

19.4A.— (1) The auditor of court must—

(a) prepare a statement of the amount of expenses as taxed;

(b) transmit the process, the taxed account and the statement to the clerk; and

(c) on the day on which the documents referred to in sub-paragraph (b) are transmitted, intimate that fact and the date of the report to each party to whom the auditor intimated the diet of taxation.

(2) The party found entitled to expenses must, within 7 days after the date of receipt of intimation under paragraph (1)(c), send a copy of the taxed account to the party found liable in expenses.

(3) Where no objections are lodged under rule 19.5 (objections to taxed account), the court may grant decree for the expenses as taxed.

Objections to taxed account

19.5.— (1) A party to an appeal who has appeared or been represented at a diet of taxation may object to the auditor of court’s statement by lodging in process a note of objection within 14 days after the date of the statement.

(2) The party lodging a note of objection is referred to in this rule as “the objecting party”.

(3) On lodging the note of objection the objecting party must apply by motion for an order—

(a) allowing the note to be received; and

(b) allowing a hearing on the note of objection.

(4) On the granting of the order mentioned in paragraph (3), the objecting party must intimate to the auditor of court—

(a) the note of objection; and

(b) the interlocutor containing the order.

(5) Within 14 days after receipt of intimation of the items mentioned in paragraph (4) the auditor of court must lodge in process a statement of reasons in the form of a minute stating the reasons for the auditor’s decision in relation to the items to which objection is taken in the note.

(6) On the lodging of the statement of reasons the clerk must fix a hearing on the note of objection.

(7) At the hearing, the court may—

(a) sustain or repel any objection in the note of objection or remit the account of expenses to the auditor of court for further consideration; and

(b) find any party liable in the expenses of the procedure on the note of objection.”.

Revocation

6.  The following Acts of Sederunt are revoked—

(a) Act of Sederunt (Expenses of Party Litigants) 1976(18);

(b) Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992(19);

(c) Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993(20);

(d) Act of Sederunt (Fees of Members of the Association of Commercial Attorneys in the Sheriff Court) 2009(21);

(e) Act of Sederunt (Sanction for the Employment of Counsel in the Sheriff Court) 2011(22);

(f) Act of Sederunt (Fees of Solicitors in the Sheriff Appeal Court) 2015(23).

Saving

7.—(1) The Acts of Sederunt revoked by paragraph 6 are saved in so far as they apply to—

(a) any proceedings commenced before the coming into force of this Act of Sederunt; and

(b) summary cause proceedings in the sheriff court commenced on or after the coming into force of this Act of Sederunt.

(2) For the purpose of sub-paragraph (1)—

(a) proceedings in the Sheriff Appeal Court; and

(b) proceedings in the Inner House of the Court of Session under Chapters 38, 39 or 40 of the Rules of the Court of Session 1994, other than on a remit from the Sheriff Appeal Court,

are distinct proceedings.

(3) In sub-paragraph (1)(b) the reference to summary cause proceedings is to proceedings subject to the procedure introduced by section 35 of the Sheriff Courts (Scotland) Act 1971(24).

CJM SUTHERLAND

Lord President

I.P.D.

Edinburgh

27th February 2019