Statutory Instruments
LEGAL AID AND ADVICE, SCOTLAND
Made
31st March 1994
Laid before Parliament
14th April 1994
Coming into force
5th May 1994
The Secretary of State, in exercise of the powers conferred on him by sections 33(2)(a) and (3) and 36(1) and (2)(a), of the Legal Aid (Scotland) Act 1986((1)), and of all other powers enabling him in that behalf, hereby makes the following Regulations:
1.—(1) These Regulations may be cited as the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1994 and shall come into force on 5th May 1994.
(2) In these Regulations “the principal Regulations” means the Civil Legal Aid (Scotland) (Fees) Regulations 1989((2)).
2.—(1) Regulations 3, 5, 7 and 8(2) shall apply only in relation to any case where–
(a)legal aid is made available on or after 5th May 1994; and
(b)all work in respect of which legal aid is made available was done on or after that date.
(2) Regulations 4, 6 and 8(1) shall apply only in relation to any case where–
(a)all work in respect of which legal aid is made available was done on or after 5th May 1994; and
(b)the cause or action in respect of which legal aid is made available was commenced on or after 1st January 1994.
3. In regulation 2(1) of the principal Regulations((3)) (interpretation)–
(a)in the introduction after the word “context” there shall be inserted the word “otherwise”;
(b)for the definitions of “counsel”, “junior counsel” and “junior”, there shall be substituted–
““counsel” includes a solicitor-advocate, except in regulation 10(2) and Schedule 2;
“junior counsel” or “junior” includes a junior solicitor-advocate;” and
(c)for the definition of “rights of audience solicitor” to the end of Regulation 2(1) there shall be substituted the following provisions–
““right of audience” means, in relation to a solicitor, a right of audience in the Court of Session, the House of Lords and the Judicial Committee of the Privy Council which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980((4));
“senior counsel” or “senior” includes a senior solicitor-advocate except in paragraph (1A) below;
“solicitor-advocate” means a solicitor, whether instructed by another solicitor or not, when and only when he is exercising his right of audience or acting in connection with the exercise of such a right and “junior solicitor-advocat” and “senior solicitor-advocate” shall be construed in accordance with paragraph (1A) below;
and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.
(1A) For the purposes of these Regulations, a solicitor-advocate shall be–
(a)a senior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a senior counsel in a case in the House of Lords or where the Board has authorised the employment of senior counsel under regulation 21(1)(b) or (2) of the Civil Legal Aid (Scotland) Regulations 1987((5)); or
(b)a junior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a junior counsel, irrespective of whether or not the Board has authorised the employment of senior counsel in the case.”.
4. In regulation 5(4) of the principal Regulations for paragraph (g) there shall be substituted–
“(g)the steps taken with a view to settling the proceedings, limiting the matters in dispute or limiting the scope of any hearing; and
(h)any other fees and allowances payable to the solicitor in respect of other items in the same proceedings and otherwise charged for in the account.”.
5. After paragraph (2) of regulation 10 of the principal Regulations((6)), there shall be inserted–
“(2A) The fees of a solicitor-advocate for any work in relation to proceedings in the House of Lords shall be 90 per cent of the amount of fees which would be allowed for that work on a taxation of expenses between solicitor and client, third party paying, if the work done were not legal aid.”.
6. For the Table of Fees set out in Schedule 2 to the principal Regulations((7)) (fees of solicitors for proceedings in the sheriff court) there shall be substituted the Table of Fees set out in the Schedule to these Regulations.
7. For paragraph 1 of Schedule 4 to the principal Regulations((8)) (fees of counsel for proceedings in the Court of Session), there shall be substituted the following paragraph:–
“1. Subject to the following provisions of this Schedule, the fees of counsel and of solicitor-advocates shall be calculated in accordance with the Table of Fees in this Schedule and the fee of a solicitor-advocate for undertaking an item of work shall be–
(a)where he is acting as a junior solicitor-advocate, the same as that allowable to a junior counsel for undertaking an item of work equivalent to that undertaken by the solicitor-advocate; or
(b)where he is acting as a senior solicitor-advocate, the same as that allowable to a senior counsel for undertaking an item of work equivalent to that undertaken by the solicitor-advocate.”.
8.—(1) The Civil Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 1990((9)), regulation 4(b) of the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1991((10)) and regulation 3 of the Civil Legal (Fees) Amendment Regulations 1992((11)) are hereby revoked.
(2) The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1993((12)) are hereby revoked.
Fraser of Carmyllie
Minister of State, Scottish Office
St Andrew’s House,
Edinburgh
31st March 1994
Regulation 5
| 1. | Actions (other than those specified in paragraph 2 of this Part) in which decree is granted without proof– Inclusive fee to cover all work from taking instructions up to and including obtaining extract decree | £ 77.00 |
| Note: | In cases where settlement is effected after service of a writ but before the expiry of the period of notice | £ 64.00 |
| If the pursuer’s solicitor elects to charge this inclusive fee he shall endorse a minute to that effect on the initial writ before ordering extract decree. Outlays such as court dues for deliverance and posts shall be chargeable in addition and taxation shall be unnecessary. | ||
| 2. | Actions of separation and aliment (not being actions to which Part II of this Chapter applies), adherence and aliment or custody and aliment where proof takes place– Inclusive fee to cover all work from taking instructions up to and including obtaining extract decree | £271.90 |
1. In any undefended action of divorce or of separation and aliment where–
(a)the facts set out in section 1(2)(b) (unreasonable behaviour) of the Divorce (Scotland) Act 1976((13)) are relied upon; and
(b)the pursuer seeks to prove those facts by means of affidavits,
the pursuer’s solicitor may in respect of the work specified in column 1 of Table A in this paragraph charge the inclusive fee specified in respect of that work in column 2 of that Table.
| Column 1 | Column 2 |
|---|---|
| Work done | Inclusive fee |
1. All work to and including the period of notice | £192.85 |
2. All work from the period of notice to and including swearing affidavits | £137.80 |
3. All work from swearing affidavits to and including sending extract decree | £ 41.35 |
4. All work to and including sending extract decree | £372.00 |
| Add process fee to item 4 | of 10% |
2. In any undefended action of divorce or separation and aliment where–
(a)the facts set out in section 1(2)(a) (adultery), 1(2)(c) (desertion), 1(2)(d) (two years' non-cohabitation and consent) or 1(2)(e) (five years' non-cohabitation) of the Divorce (Scotland) Act 1976 are relied on; and
(b)the pursuer seeks to prove those facts by means of affidavits,
the pursuer’s solicitor may in respect of the work specified in column 1 of Table B in this paragraph charge the inclusive fee specified in respect of that work in column 2 of that Table.
| Column 1 | Column 2 |
|---|---|
| Work done | Inclusive fee |
1. All work to and including the period of notice | £158.40 |
2. All work from the period of notice to and including swearing affidavits | £ 75.80 |
3. All work from swearing affidavits to and including sending extract decree | £ 41.35 |
4. All work to and including sending extract decree | £275.55 |
| Add process fee to item 4 | of 10% |
3. If–
(a)the pursuer’s solicitor charges an inclusive fee under either paragraph 1 or paragraph 2 of this Part; and
(b)the action to which the charge relates includes a crave relating to an ancillary matter,
in addition to that fee, he may charge in respect of the work specified in column 1 of Table C in this paragraph the inclusive fee specified in respect of that work in column 2 of that Table.
| Column 1 | Column 2 |
|---|---|
| Work done | Inclusive fee |
1. All work to and including the period of notice | £ 75.00 |
2. All work from the period of notice to and including swearing affidavits | £ 44.05 |
3. All work under items 1 and 2 | £119.05 |
| Add process fee to item 3 | of 10% |
1. Instruction fee— (a)To cover all work (except as hereinafter otherwise specially provided for in this Chapter) to the lodging of defences including copying | £211.00 |
(b)Additional fee where separate statement of facts and counterclaim and answers lodged | £ 39.00 |
2. Precognitions–taking and drawing–per sheet | £ 19.00 |
Note:Where a skilled witness prepares his own precognition or report, the solicitor shall be allowed half of above drawing fee for revising and adjusting it. | |
3. Productions– (a)For lodging productions–each inventory | £ 20.00 |
(b)For considering opponent’s productions–each inventory | £ 10.00 |
4. Adjustment fee–To cover all work (except as otherwise specially provided for in this Chapter) in connection with the adjustment of the Record including, making up and lodging certified copy Record— (a)Fee to solicitor for any party | £ 97.00 |
(b)Fee to each original party’s solicitor if action settled before Options Hearing | £ 57.00 |
(c)Additional fee to each original party’s solicitor if additional defender brought in before Options Hearing | £ 24.00 |
(d)Additional fee to each original party’s solicitor if additional defender brought in after Options Hearing | £ 31.00 |
5. Fee for framing affidavits–per sheet | £ 8.00 |
6. Options Hearing–Fee to include preparation for and conduct of Options Hearing (or First Hearing in defended family actions) and noting interlocutor — (a)Where hearing does not exceed one half hour | £ 80.00 |
(b)Where hearing exceeds one half hour–for every extra quarter hour | £ 12.00 |
(c)For lodging and intimating or for considering note of basis of preliminary plea–for each Note lodged | £ 20.00 |
7. Additional Procedure–For all work subsequent to Options Hearing including preparation for and attendance at procedural hearing —
| £ 80.00 |
| £ 12.00 |
8. Debate (other than on evidence)— (a)Where counsel not employed— (i)To include preparation for and all work in connection with any hearing or debate other than on evidence | £ 61.00 |
(ii)For conduct of debate–per quarter hour | £ 11.00 |
(b)Where counsel employed, fee to solicitor appearing with counsel–per quarter hour | £ 8.00 |
9. Interim Interdict Hearings— (a)Preparation for each hearing–each party | £ 38.00 |
(b)Fee to conduct hearing–per quarter hour | £ 11.00 |
(c)If counsel employed, fee to attend hearing per quarter hour | £ 8.00 |
10. Reports obtained under order of court, excluding auditor’s report— (a)Fee for all work incidental thereto | £ 42.00 |
(b)Additional fee per sheet of report to include all copies required (maximum £27.50) | £ 5.50 |
11. Commissions to take evidence— (a)On interrogatories— (i)Fee to solicitor applying for commission to include drawing, intimating and lodging motion, drawing and lodging interrogatories, instructing commissioner and all incidental work (except as otherwise specially provided for in this Chapter) but excluding attendance at execution of commission | £116.00 |
(ii)Fee to opposing solicitor if cross-interrogatories prepared and lodged | £ 77.00 |
(iii)If no cross-interrogatories lodged | £ 23.00 |
(b)Open commissions— (i)Fee to solicitor applying for commission to include all work (except as otherwise specially provided for in this Chapter) up to lodging report of commission but excluding attendance thereat | £ 77.00 |
(ii)Fee to solicitor for opposing party | £ 39.00 |
(iii)Fee for attendance at execution of commission–per quarter hour | £ 11.00 |
(iv)If counsel employed, fee for attendance of solicitor–per quarter hour | £ 8.00 |
(v)Travelling time–per quarter hour | £ 8.00 |
12. Specification of documents— (a)Fee to cover drawing, intimating and lodging specification and relative motion— (i)Where motion unopposed | £ 42.00 |
(ii)Where motion opposed–additional fee per quarter hour | £ 11.00 |
(b)Fee for considering opponent’s specification and relative motion (i)Where motion not opposed | £ 23.00 |
(ii)Where motion opposed–additional fee per quarter hour | £ 11.00 |
(c)Fee for citation of havers, preparation for and attendance before commissioner at execution of commission— (i)Where attendance before commissioner does not exceed 1 hour | £ 42.00 |
(ii)For each additional quarter hour after the first hour | £ 11.00 |
(d)If optional procedure adopted–fee per person upon whom order is served | £ 10.00 |
(e)Fee for perusal of documents recovered–per quarter hour | £ 11.00 |
13. Amendment of Record— (a)(i)Fee to cover drawing, intimating and lodging minute of amendment and relative motion | £ 38.00 |
(ii)Fee for perusal of answers | £ 15.00 |
(iii)Fee for any court appearance necessary–per quarter hour | £ 11.00 |
(b)(i)Fee to opposing solicitor–for perusing minute of amendment | £ 31.00 |
(ii)Fee for preparation of answers | £ 15.00 |
(iii)Fee for any court appearance necessary–per quarter hour | £ 11.00 |
(c)Fee for adjustment of minute and answers where applicable to be allowed in addition to each party | £ 38.00 |
14. Motions and minutes— (a)Fee to cover drawing, intimating and lodging any written motion or minute, including a reponing note, and relative attendances at court (except as otherwise provided for in this Chapter)— (i)Where opposed | £ 54.00 |
(ii)Where unopposed (including for each party a joint minute other than under paragraph 20(b)) | £ 23.00 |
(b)Fee to cover considering opponent’s written motion, minute or reponing note and relative attendances at court— (i)Where motion, minute or reponing note opposed | £ 54.00 |
(ii)Where motion, minute or reponing note unopposed | £ 20.00 |
15. Hearing Limitation— Fee to include work (except as otherwise specially provided for in this Chapter) undertaken with a view to limiting the scope of any hearing, and including the exchange of documents, precognitions and expert reports, agreeing any fact, statement or document not in dispute, preparing and intimating any Notice to Admit or Notice of Non-Admission and preparing and lodging any Joint Minute, not exceeding | £190.00 |
16. Procedure preliminary to proof— (a)Fee to cover all work, preparing for proof (except as otherwise specially provided in this Chapter)— (i)If action settled or abandoned not later than 14 days before the diet of proof | £124.00 |
(ii)In any other case | £227.00 |
(b)Fee to cover preparing for adjourned diet and all incidental work as in (a) if diet postponed for more than 6 days, for each additional diet | £ 50.00 |
(c)Fee for attendance inspecting opponent’s documents–per quarter hour | £ 12.00 |
17. Conduct of proof— (a)Fee to cover conduct of proof and debate on evidence if taken at close of proof–per quarter hour | £ 11.00 |
(b)If counsel employed, fee to solicitor appearing with counsel–per quarter hour | £ 8.00 |
18. Debate on evidence (a)Where debate on evidence not taken at conclusion of proof, fee for preparing for debate | £ 38.00 |
(b)Fee for conduct of debate–per quarter hour | £ 11.00 |
(c)If counsel employed, fee to solicitor appearing with counsel–per quarter hour | £ 8.00 |
19. Appeals— (a)To sheriff principal — (i)Fee to cover instructions, marking of appeal or noting that appeal marked, noting diet of hearing thereof and preparation for hearing | £116.00 |
If counsel employed restricted to — | £ 66.00 |
(ii)Fee to cover conduct of hearing–per quarter hour | £ 11.00 |
If counsel employed, fee to solicitor appearing with counsel–per quarter hour | £ 8.00 |
(b)To Court of Session —
| £ 38.00 |
20. Settlements— (a)Judicial tender — (i)Fee for preparation and lodging or for consideration of minute of tender | £ 42.00 |
(ii)Fee on acceptance of tender, to include preparation and lodging or consideration of minute of acceptance and attendance at court when decree granted in terms thereof | £ 34.00 |
(b)Extra-judicial settlement —
| £ 78.00 |
(c)Whether or not fees are payable under (a) or (b) above where additional work has been undertaken with a view to effecting settlement, including offering settlement, although settlement is not agreed–not exceeding | £ 78.00 |
21. Final procedure— (a)Fee to cover settling with witnesses, enquiring for cause at avizandum, noting final interlocutor | £ 58.00 |
(b)Fee to cover drawing account of expenses, arranging, intimating and attending diet of taxation and obtaining approval of auditor’s report and adjusting account with opponent where necessary, ordering, procuring and examining extract decree or adjusting account with opponent | £ 46.50 |
22. Copying— Copying all necessary papers by any means— (a)First copy–per sheet | £ 1.00 |
(b)Additional copies–per sheet | £ 0.40 |
Note: A sheet shall be 250 words. When copied by photostatic or similar process, each page shall be charged as one sheet. | |
23. Process fee—
| |
24. Instruction of counsel (a)Fee for instructing counsel to revise pleadings | £ 24.00 |
(b)Fee for instructing counsel to attend court | £ 50.00 |
(c)Fee for attending consultation with counsel — (i)Where total time engaged does not exceed one hour | £ 50.00 |
(ii)For each additional quarter hour | £ 11.00 |
Note: In each case to cover all consultations, revisal of papers and all incidental work. |
1. Fee, to include taking instructions, framing summons and statement of claim, obtaining warrant for service, serving, instructing service as necessary by sheriff officer (where appropriate), attendance endorsing minute for and obtaining decree in absence and extract decree and including posts and incidents | £ 42.90 |
2. Service (a)Citation by post wheresoever after the first citation for each party | £ 4.90 |
(b)Framing and instructing service by advertisement–for each party | £ 13.80 |
3. Attendance at court | £ 13.80 |
1.—(a) Instruction fee for pursuer’s solicitor, to include taking instructions, framing summons and statement of claim, obtaining warrant for service, enquiring for notice of intention to defend, attendance at first calling, noting defence | £ 58.90 |
(b)Instruction fee for defender’s solicitor, to include taking instructions (including instructions for a counter-claim) and all work up to and including attendance at first calling and stating a defence— Such fee as appears to the auditor to provide reasonable remuneration for the work done but not to exceed the fee prescribed in sub-paragraph (a) above. | |
2. Service (a)Citation by post within the United Kingdom, Isle of Man, Channel Islands, or the Republic of Ireland–for each party | £ 4.90 |
(b)Citation by post elsewhere–for each party | £ 10.50 |
(c)Instructing service or reservice by sheriff officer including perusing execution of citation and settling sheriff officer’s fee–for each party | £ 4.90 |
(d)Framing and instructing service by advertisement–for each party | £ 15.35 |
3. Attendance at court Attendance at any diet except as otherwise specifically provided | £ 15.35 |
4. Preparing for proof, to include all work in connection with proof not otherwise provided for | £ 53.20 |
5. Fee to cover preparing for adjourned diet and all incidental work if diet postponed for more than 6 days–for each adjourned diet | £ 26.65 |
6. Drawing and lodging inventory of productions, lodging the productions specified therein and considering opponents' productions (to be charged once only in each process) | £ 22.70 |
| Where only one party lodges productions, opponent’s solicitor’s fee for considering same | £ 10.50 |
7. Precognitions Drawing precognitions, including instructions, attendances with witnesses and all relative meetings and correspondence–per witness | £ 22.70 |
| Where precognition exceeds 2 sheets–for each additional sheet | £ 10.50 |
8. Motions and minutes Fee to cover drawing, intimating and lodging of any written motion or minute, excluding a minute or motion to recall decree, and relative attendance at court (except as otherwise provided in this Chapter)— (a)Where opposed | £ 32.35 |
(b)Where unopposed (including for each party a joint minute or joint motion) | £ 19.45 |
9. Fee to cover considering opponent’s written motion or minute excluding a minute or motion to recall decree, and relative attendance at court— (a)Where motion or minute opposed | £ 26.65 |
(b)Where motion or minute unopposed | £ 15.35 |
10. Conduct of proof Fee to cover conduct of proof and debate on evidence taken at close of proof–per half hour | £ 15.35 |
| Waiting time–per half hour | £ 8.15 |
11. Settlements (a)Judicial tender—
| £ 32.35 |
| Fee for consideration and rejection of tenders | £ 22.70 |
| Fee on acceptance of tender–to include preparing and lodging, or consideration of, minute of acceptance and attendance at court when decree granted in terms thereof | £ 22.70 |
| Extra-judicial settlement–fee to cover negotiations resulting in settlement, framing or revising joint minute and attendance at court when authority interponed thereto | £ 53.20 |
12. Specification of documents (a)Fee to cover drawing, intimating and lodging specification of documents and relative motion and attendance at court | £ 26.65 |
(b)Inclusive fee to opposing solicitor | £ 24.30 |
(c)Fee to solicitor for each party for citation of havers, preparation for and attendance before commissioner–for each half hour | £ 15.35 |
(d)If alternative procedure adopted, fee per person upon whom order served | £ 10.50 |
13. Commissions to take evidence (a)Fee to cover drawing, lodging and intimating motion and attendance at court— (i)Where opposed | £ 32.35 |
(ii)Where unopposed | £ 19.45 |
(b)Fee to cover considering such motion and attendance at court— (i)Where opposed | £ 26.65 |
(ii)Where unopposed | £ 15.35 |
(c)Fee to cover instructing commissioner and citing witness | £ 15.35 |
(d)Fee to cover drawing and lodging interrogatories and cross-interrogatories–per sheet | £ 10.50 |
(e)Attendance before commissioner–per hour | £ 14.60 |
| Travelling time–per hour | £ 9.75 |
14. Supplementary note of defence (when leave granted to lodge) | £ 10.50 |
15. Appeals Fee to cover instructions, marking of appeal or noting that appeal marked, noting of diet of hearing and preparations for hearing | £ 72.75 |
| Fee to cover conduct of hearing–per half hour | £ 15.35 |
16. Final Procedure Fee to cover settling with witnesses, enquiries at avizandum, notin final interlocutor | £ 32.35 |
| Fee to cover drawing account of expenses, arranging, intimating and attending hearing on expenses, and obtaining approval of sheriff clerk’s report | £ 32.35 |
| Fee to cover considering opponent’s account of expenses and attendance at hearing on expenses | £ 15.35 |
1. Petition for decree dative Inclusive fee for taking instructions to present petition, drawing petition and making necessary copies, lodging and directing publication, attendance at court, moving for decree-dative, extracting decree where necessary and all matters incidental to petition | £ 32.70 |
2. Restriction of Caution Inclusive fee for taking instructions to prepare drawing petition and making necessary copies, lodging, instructing advertisement and all matters incidental to petition | £ 32.70 |
3. Fees for other work shall be chargeable according to Schedule 3.” |
(This note is not part of the Regulations)
These Regulations amend the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (“the principal Regulations”).
The regulations–
(a)substitute new definitions relating to solicitors who have a right of audience in the Court of Session, the House of Lords and the Judicial Committee of the Privy Council, make new provision in relation to such solicitors and revoke the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1993 (S.I. 1993/531) which inserted defective definitions in relation to such solicitors (regulations 3, 5, 7 and 8(2));
(b)provide a new factor (steps taken to settle or limit the scope of proceedings) which may be taken into account in fixing an increased fee under regulation 5(4) of the principal Regulations (regulation 4); and
(c)provide a new Table of Fees of solicitors for proceedings in the sheriff court to take account of the Ordinary Cause Rules 1993 introduced by Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (S.I. 1993/1956) (regulation 6 and 8(1)).
S.I. 1989/1490, amended by S.I. 1990/473 and 1036, 1991/565, 1992/372 and 1993/531.
Regulation 2 was amended by S.I. 1993/531.
1980 c. 46; section 25A was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), section 24.
S.I. 1987/381; regulation 21 was amended by S.I. 1992/753.
Regulation 10 was amended by S.I. 1990/473 and 1991/565.
Schedule 2 was amended by S.I. 1990/1036, 1991/565 and 1992/372.
Schedule 4 was amended by S.I. 1990/473, 1991/565 and 1992/372.