Legal Aid (Scotland) Act 1986

33 Fees and outlays of solicitors and counsel. S

(1) [F1 Subject to subsections (3A) and (3B) below,] any solicitor or counsel who acts for any person by providing legal aid or advice and assistance under this Act shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by him in so acting.

[F2 (1A) A registered organisation shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by it in respect of the advisers it approves providing advice and assistance under this Act.]

(2) The Secretary of State may, by regulations made under this section, make such provision as seems to him appropriate in respect of the fees and outlays of solicitors and counsel [F3 and, in respect of advice and assistance as mentioned in paragraph (b) of this subsection, advisers]—

(a) acting in any proceedings for a person to whom legal aid has been made available; or

(b) providing advice and assistance in accordance with Part II of this Act.

(3) Without prejudice to the generality of subsection (2) above, regulations made under this section may—

(a) prescribe the work in respect of which fees may be charged;

(b) prescribe rates or scales of payment of fees and outlays allowable and the conditions under which such fees and outlays may be allowed;

(c) provide for the assessment and taxation of fees and outlays, and for the review of any such assessmen or taxation, either by the Secretary of State or by any other person;

(d) prescribe general principles to be applied in connection with any such assessment, taxation or review;

(e) prescribe forms to be used for the purposes of any regulations made under this section; and

(f) make different provision for different cases.

[F4 (3A) The Secretary of State may by regulations under this section prescribe fixed payments to be made to a solicitor in respect of—

(a) his professional services in providing criminal legal assistance; and

(b) such outlays as may be so prescribed.

[F5 (3AA) Regulations amending or replacing regulations made under subsection (3A) above may, for the purpose specified in subsection (3AB) below, make provision as to fixed payments in relation to criminal legal assistance provided in relation to proceedings commenced before and continuing as at the date of the making or coming into force of the amendment or replacement of the regulations.

(3AB) The purpose referred to in subsection (3AA) above is that of ensuring that persons to whom fixed payment criminal legal assistance is being provided are not, by reason of the amount of the fixed payments payable in respect of that criminal legal assistance under the regulations as they have effect immediately before the coming into force of the amendment or replacement of the regulations, deprived of the right to a fair trial.

(3AC) In subsection (3AB) above “fixed payment criminal legal assistance” and “fixed payments” have respectively the meanings given by subsection (3E) below;]

(3B) A solicitor who provides any criminal legal assistance in respect of which a fixed payment has been prescribed in regulations made under subsection (3A) above shall not be entitled to any other payment out of the Fund in respect of the professional services and outlays mentioned in that subsection, but shall be entitled to reimbursement of any other outlays which he has properly incurred.]

[F6 (3C) The Scottish Ministers may, however, for the purpose of enabling the Board to ensure that a person to whom fixed payment criminal legal assistance is provided is not, for the reason specified in subsection (3D) below, deprived of the right to a fair trial, by regulations under this subsection, provide that—

(a) in such circumstances; and

(b) under such conditions,

as may be prescribed by the regulations, a solicitor who provides such criminal legal assistance shall, instead of receiving fixed payments, be paid out of the Fund in accordance with regulations made under subsections (2) and (3) above.

(3D) The reason referred to in subsection (3C) above is the amount of the fixed payments payable for the criminal legal assistance provided.

(3E) In subsection (3C) above—

• “fixed payment criminal legal assistance” means criminal legal assistance in respect of which fixed payments are prescribed under subsection (3A) above;

• “fixed payments” means fixed payments so prescribed.

(3F) Regulations made under subsection (3C) above shall provide that it is for the Board to determine whether any prescribed circumstances exist and whether any prescribed conditions are met.

(3G) Circumstances may be prescribed under subsection (3C)(a) above by reference to such factors as the Scottish Ministers think fit.

(3H) The conditions which may be prescribed under subsection (3C)(b) above include those which stipulate that a solicitor providing criminal legal assistance—

(a) applies to the Board to exercise its power of determination under subsection (3F) above;

(b) does so in such manner and form as the Board may specify and at as early a stage in the provision of the criminal legal assistance as is reasonably practicable; and

(c) keeps proper records of all professional services provided by way of and outlays incurred in the provision of that criminal legal assistance, whether before or after the exercise of that power of determination.

(3J) Regulations may be made under subsection (3C) above so as to relate to criminal legal assistance provided in relation to proceedings commenced before and continuing as at the date of coming into force of section 7 of the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), and regulations so relating may disapply any condition which would otherwise apply under subsection (3C)(b) above.

(3K) The Board shall establish a procedure under which any person—

(a) whose solicitor’s application under subsection (3H) above has been refused; or

(b) on whose solicitor’s application under that subsection the Board has made a determination which is such that the solicitor will not be paid out of the Fund in accordance with regulations made under subsections (2) and (3) above,

may apply to the Board for review of that refusal or determination.]

(4) In subsection (1) above the reference to acting for a person includes, in relation to a solicitor, a reference to acting for such a person on the instructions of another solicitor.

(5) Where a person is in receipt of legal aid in connection with any proceedings, any expenses incurred in connection with the proceedings which would, if he were not in receipt of legal aid, be paid, in the first instance, by or on behalf of the solicitor acting for him, shall be so paid.

[F7 (6) Subsections (7) to (9) apply where—

(a) a solicitor or counsel submits a claim to the Board in respect of fees or outlays incurred by the solicitor or counsel in connection with—

(i) the provision of legal aid by the solicitor or counsel prior to the completion of the proceedings for which the legal aid was granted, or

(ii) the provision of advice and assistance by the solicitor or counsel to a person while the advice and assistance is being provided by the solicitor or counsel to the person, and

(b) in submitting the claim, the solicitor or counsel confirms to the Board that the fees or outlays to which the claim relates have been properly incurred by the solicitor or counsel.

(7) The fees or outlays to which the claim relates are to be treated as having been properly incurred by the solicitor or counsel for the purposes of subsection (1).

(8) Any sum paid out of the Fund to the solicitor or counsel pursuant to the claim is to be treated as having been paid out of the Fund in accordance with section 4(2)(a).

(9) Where the claim is made under regulation 11 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (S.I. 1989/1490) in relation to the provision of civil legal aid, the fees to which the claim relates are to be treated, for the purposes of the regulation, as having been necessarily and reasonably incurred in connection with the proceedings for which the legal aid is granted.]

[F8 (10) Subsection (11) applies where—

(a) a sum is paid out of the Fund after the day on which paragraph 22 of schedule 4 of the Coronavirus (Scotland) Act 2020 comes into force (the “interim payment”) in respect of fees or outlays incurred by a solicitor in connection with—

(i) the provision of legal aid by the solicitor prior to the completion of the proceedings for which the legal aid was granted, or

(ii) the provision of advice and assistance by the solicitor to a person while the advice and assistance is being provided by the solicitor to the person,

(b) on the instruction of the solicitor, the interim payment is paid by the Board to the firm of the solicitor, and

(c) on the completion of the proceedings for which the legal aid was granted (or, as the case may be, on the cessation of the advice and assistance by the solicitor to the person), the Board determines that the interim payment exceeds the sum payable out of the Fund to the solicitor under subsection (1) in connection with the provision of the legal aid (or the advice and assistance) by the solicitor.

(11) The firm of the solicitor is jointly and severally liable with the solicitor for the repayment to the Fund of the excess mentioned in subsection (10)(c).

(12) Subsection (13) applies where—

(a) a firm is jointly and severally liable for the repayment of a sum to the Fund under subsection (11) (the “repayment amount”),

(b) the repayment amount has not been repaid to the Fund,

(c) a separate sum is due to be paid out of the Fund to any solicitor of the firm (the “amount payable”), and

(d) the solicitor has instructed the Board to pay the amount payable to the firm.

(13) The Board may deduct all or part of the repayment amount from the amount payable.]

Textual Amendments

F1 Words in s. 33(1) inserted (1.10.1997) by 1997 c. 48, s. 62(1), Sch. 1 para. 12(9); S.I. 1997/2323, art. 6(2)

F2 S. 33(1A) inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(7)(a), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

F3 Words in s. 33(2) inserted (30.7.2007) by Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), ss. 67(7)(b), 82(2) (with s. 77); S.S.I. 2007/335, art. 2(a)

F4 S. 33(3A)(3B) inserted (1.10.1997) by 1997 c. 48, s. 51; S.I. 1997/2323, art. 6, Sch. 3

F5 S. 33(3AA)-(3AC) inserted (6.7.2001) by 2001 asp 7, ss. 8, 15(3)

F6 S. 33(3C)-(3K) inserted (6.7.2001) by 2001 asp 7, ss. 7, 15(3)

F7 S. 33(6)-(9) inserted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 4 para. 21(2) (with ss. 11-13) (which affecting provision expires (1.10.2022) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 12(1))

F8 S. 33(10)-(13) inserted (temp.) (7.4.2020) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 17(1), sch. 4 para. 22(2) (with ss. 11-13) (which affecting provision expires (1.10.2022) by virtue of Coronavirus (Scotland) Act 2020 (asp 7), s. 12(1))