Payment of fees for legal work
Section 92: Duty on the Scottish Ministers to pay fee for legal work in making an application
267.This section places a duty on the Scottish Ministers to pay, to a solicitor, a prescribed sum (i.e. a fixed fee) for legal work reasonably carried out in the making of an application for redress. Payment will be made whether or not the application was successful and whether or not the application was subsequently withdrawn (although in both these circumstances, separate payment amounts may be specified by virtue of section 94(4) as read with section 107(1)(a)).
268.Subsection (2) provides that where it is believed by the Scottish Ministers that work might not have been reasonably carried out, the matter will be referred for Redress Scotland to make a decision on payment. Otherwise, the request will be processed and the fixed fee paid by the Scottish Ministers without any referral to Redress Scotland being required.
269.What constitutes legal work carried out in making an application for redress (or in connection with a proposed application under section 93) is informed by both subsection (4) and by any provision that is made under section 94(3)(b). As such, it includes advice and assistance relating to: eligibility; the type of redress payment to apply for; the application process; whether to accept an offer of redress and sign a waiver; advice on whether to request a review; and the review process. However, the question of whether work is undertaken reasonably will relate not just to the type of work undertaken but also to the circumstances in which it was undertaken. For example, work involved in making an application in respect of a patently ineligible person (such as one whose abuse was not historical and which occurred in 2019) would likely not be covered.
270.Under subsections (3) and (4), legal advice given in relation to pursuing litigation as an alternative to redress will not be funded unless and to the extent that it forms part of legal work reasonably undertaken in connection with the making of an application to the scheme. For these purposes, legal work carried out in connection with making an application for redress includes advice and assistance relating to: eligibility; the type of redress payment to apply for; the application process; whether to accept an offer of redress and sign a waiver; advice on whether to request a review; and the review process.
Section 93: Duty on the Scottish Ministers to pay certain fees for legal work in exceptional cases
271.Subsections (1) and (2) place a duty on the Scottish Ministers to pay, to a solicitor, a prescribed sum (fixed fee) for legal work reasonably carried out in connection with a proposed application by a person who sought legal advice on eligibility but did not subsequently apply to the scheme where, in Redress Scotland’s assessment, there are exceptional or unexpected circumstances which justify the payment of the fixed fee. For example, this may cover situations in which the prospective applicant died before the application could be submitted.
272.Subsection (3) places a duty on the Scottish Ministers to pay, to a solicitor, an additional sum as specified by Redress Scotland in respect of legal work reasonably carried out in relation to an application or proposed application where there are exceptional or unexpected circumstances which justify a payment over and above the fixed fee.
273.It is for Redress Scotland to decide whether anything is payable and, in the case of a request for an additional payment, the amount of that.
Section 94: Sections 92 and 93: further provision
274.This section makes further provision about the duty placed on Scottish Ministers to pay fees for legal work carried out in making an application and to pay certain fees for legal work in exceptional cases. It relates to the rules surrounding a ‘fee payment request’ (as defined in subsection (1)) and the amount of fixed fees. Subsection (2) provides that only a solicitor may make a fee payment request.
275.Subsection (3) allows the Scottish Ministers to make regulations about fee payment requests, including providing for time limits for making a fee payment request, any steps that must be taken prior to making such a request (which could, for example, require prior authorisation to be sought before incurring additional costs which might lead to a fee payment request under section 93(3)), the form and content of the request, and the information and evidence to be provided in or with the request.
276.The regulations can also make provision about legal work which is or is not to be regarded as reasonably undertaken (see also paragraph 269 of these Notes). This could, for example, involve specifying that certain types of work will be regarded as being undertaken in making an application or in connection with a proposed application, while still leaving the assessment of reasonableness to Redress Scotland. The power could also be used to specify types of work, or circumstances in which work is undertaken, which will lead to a conclusion that the work is not reasonably undertaken. There is a power to modify enactments when making such provision, as a consequential modification to section 92(4) may be appropriate.
277.Regulations under subsection (3) are subject to the negative procedure, except where they modify an Act and are therefore subject to the affirmative procedure (see section 107(4)).
278.Subsection (4) allows for regulations to prescribe the level of the fixed fees or scales of fees for legal fees and the conditions under which these will be payable. By virtue of section 107(1)(a), different provision may also be made for different purposes, so different fees could be set for different things. For example, this could be based on (among other things) the type of redress payment sought, on whether the application involves a review, on whether there has been a previous application to the redress scheme in respect of the person, or the amount that is offered to the applicant. Regulations under this subsection are subject to the negative procedure.
Section 95: Assessment, notification and review of certain fee payment requests
279.This section sets out the process for the assessment, notification and review of certain fee payment requests.
280.Subsections (1) and (2) provide that the Scottish Ministers must refer to Redress Scotland, for assessment, any fee payment requests for—
legal work that may not have been reasonably carried out,
any legal work reasonably carried out in connection with a proposed application by a person who sought legal advice on eligibility but did not subsequently apply, or
any legal work reasonably carried out in relation to an application or proposed application where there may be exceptional or unexpected circumstances which justify a payment over and above the fixed fee.
281.Subsection (3) requires the Scottish Ministers to, as soon as reasonably practicable after they have been informed by Redress Scotland of the outcome of Redress Scotland’s assessment, notify the solicitor of the outcome and provide the solicitor with a summary of reasons for it (which will have been provided to the Scottish Ministers by Redress Scotland).
282.Subsection (4) sets out the rules surrounding the rights of a solicitor to request a review of the assessment made by Redress Scotland. Namely, a solicitor may ask for a review where it has been determined that legal work was not reasonably carried out and that no sum is to be paid, where legal work was carried out in cases where no application was subsequently made and Redress Scotland decide that no sum is to be paid, and where in cases of exceptional circumstances an amount is sought above the fixed fee and it is decided that either no additional sum will be paid, or that the additional sum to be paid is lower than requested.
283.Subsection (5) allows the Scottish Ministers to make regulations making further provision about reviews of fee payment requests, including about time limits for requesting a review, the form and content of the request for a review, the outcome of the review and powers of the review panel, the notification of the outcome of the review, the suspension of payment for the work until the review is determined, and the payment for the work where the outcome of the review is that the sum is to be paid. Regulations under this subsection are subject to the negative procedure.
Section 96: Restriction on additional legal fees
284.This section provides that solicitors who obtain payments for legal work under the scheme in relation to a redress application may not also charge their clients separately for work carried out in relation to the same application. The effect of this is that solicitors will not be able to top up the fee they receive from the redress scheme and recoup fees over and above that which is paid by scheme. Applicants who access legal advice funded by the redress scheme will be able to keep the entirety of their redress payment, without further legal fees being deducted or requested separately by their solicitor in relation to work that is already covered by the redress scheme’s legal fees provisions.
285.Subsection (3) provides that although applicants and potential applicants may get some advice on civil litigation in the context of whether they should sign a waiver or instead pursue litigation, the solicitor is not prevented from having separate funding arrangements for legal fees with their client in relation to that advice on civil litigation, to the extent that the advice and assistance instructed went beyond that required or appropriate as part of the legal work undertaken in making, or proposing to make, an application to the redress scheme.
