The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2007

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (“the 1989 Regulations”) providing an increase in the fees for solicitors laid down in Schedule 2 in respect of summary cause proceedings and updating the tables of fees in Chapter I and II of Schedule 6 to provide solicitors with increased fees for the more detailed and complex cases.

These Regulations generally apply to fees for work done and outlays incurred on or after 10th February 2007. They also apply to specified inclusive fees for work started before 10th February 2007 but not yet completed (regulation 2).

The main changes made to the 1989 Regulations are as follows.

The maximum percentage by which the Board may allow a fee additional to the fees prescribed in Chapter II of Schedule 6 for defended sheriff court cases in which it is satisfied that any of the circumstances specified in Chapter III of that Schedule exists is increased from 40 to 50 (regulation 4).

Schedule 2 is amended to provide for an increase of 21% in the fees for solicitors in respect of summary cause proceedings (regulation 5).

A new Chapter I of Schedule 6 is substituted providing for fees in undefended sheriff court actions and including notes on the operation of the chapter (regulation 6 and the Schedule to the Regulations).

The new Chapter I makes amendments to provide, at Part I, that a fee is payable for all of a solicitor’s work in negotiating cases where, as a result of that negotiation, no court proceedings are raised. Part II of the Chapter (previously Part I) omits the reference to actions for adherence and aliment which were abolished by the Family Law (Scotland) Act 2006. The inclusive fees in Part III (previously Part II) are, in the main, increased and drafting changes are made consequential on the reduction of the minimum periods of non-cohabitation as a ground of divorce brought in by the Family Law (Scotland) Act 2006.

Chapter II of Schedule 6 (fees in defended sheriff court actions) is amended (regulation 7) to provide–

(a) in paragraph 7 for new paragraph 2(a)(iii) of the table of fees (paragraph 2(a) and (b) is substituted by paragraph 2(a)(i) and (ii)). This paragraph provides that a fee shall be payable for all of a solicitor’s additional work where prior to the allowance of a hearing fixed for the purpose of settlement an outcome or disposal is reached. This amendment provides that in relation to the progress fee only one fee under paragraph 2(a)(i), (ii) or (iii) is payable;

(b) for a new paragraph 7A which lays down when the fee under paragraph 2(a)(iii) is payable;

(c) for new paragraphs 14A and 14B dealing with the fee payable under paragraph 4(k) in contentious contact dispute cases;

(d) in paragraph 19, concerning payment for waiting time, that the fee for the total time engaged per day is payable cumulatively between waiting and conduct time rounded up to the nearest 15 minutes. The fee is payable from the time appointed by the court for the hearing or from the conclusion of any other business before the hearing;

(e) in paragraph 24 that unless otherwise prescribed no fee shall be allowable unless the work for which the fee is payable has been completed in its entirety.

The Table of Fees in Chapter II of Schedule 6 is amended (regulation 8) at–

(a) paragraph 2, concerning progress fees, to refer in paragraphs 2(a)(i) and (ii) to court hearings fixed for the purposes of settlement and to insert new paragraphs 2(a)(iii) and (b). Paragraph 2(a)(iii) provides for a fee for all of a solicitor’s additional work where prior to the allowance of a hearing fixed for the purpose of settlement an outcome or disposal is reached. Paragraph 2(b) provides for a fee for all work in the preparation and attendance at any continued options hearing; and

(b) paragraph 4, where an additional fee for complex financial disputes, complex pensions sharing arrangements and for contentious contact disputes is made available through the insertion of paragraph 4(k) and where a fee is made available for all work in connection with peremptory diets through the insertion of paragraph 4(l).

Chapter III of Schedule 6 is amended to provide that cases which raise unusually complex issues of fact, including detailed consideration of extensive documentary evidence, may be allowed a fee additional to the fee prescribed in Chapter II (regulation 9).

Schedule 7 which lists the sheriff court proceedings for which fees for work shall only be payable under Schedule 5 is amended to include a solicitor’s work in proceedings relating to the division and sale of heritable property or those arising under the Mortgage Rights (Scotland) Act 2001 and work in connection with the registration and enforcement of a decree or in connection with letters of inhibition (regulation 10).

The operation of Rule 19 of Chapter II of Schedule 6 to the 1989 Regulations in relation to certain cases commenced but not concluded before 10th February 2007 is preserved (regulation 11). This concerns the waiting fee in cases where a solicitor has conducted any hearing listed in paragraph 5 of Chapter II of the table of fees before 10th February 2007.