https://www.slab.org.uk/faqs/schedule-2-notes-on-the-operation/
https://www.slab.org.uk/faqs/schedule-2-notes-on-the-operation/
Regulation 10
(a)counsel’s fees are allowed only where the Board has sanctioned the employment of counsel or counsel is automatically available;
(b)junior counsel’s fees shall be allowable as prescribed in Chapter 1 of Parts I to III of the Table of Fees even where sanction has been granted for the employment of senior counsel in the case, except in any case to which sub-paragraph (c) below applies;
(c)where a senior junior is representing an accused person in a multiple accused case at first instance and where any co-accused is represented by senior counsel, the fees payable to senior junior shall be those prescribed in the Table of Fees for junior as leader, and the fees payable to any junior counsel assisting senior junior shall be those of junior with leader;
(d)except on cause shown, fees for only two consultations in the case shall be allowed;
(e)[86]except on cause shown (and subject to [87]sub-paragraphs (ea) and (eb)), fees for senior counsel or, as the case may be, for both senior and junior counsel or for more than one junior counsel shall not be payable for attendance at hearings which do not require the attendance of senior or, as the case may be, both senior and junior counsel or more than one junior counsel;
(ea) [88]a fee is to be allowed to one counsel only in respect of a hearing of the type described in paragraph 6A of chapters 1 and 2 of Part 2 of the Table of Fees that did not involve a debate, motion for re-trial or further procedure;
[89](eb) a fee, under Part 1 or 3 of the Table of Fees, is to be allowed to one counsel only in respect of-
(i)a diet of deferred sentence, except where there is in contemplation the imposition of any of the following-
(a)a mandatory or discretionary life sentence;
(b)an order for lifelong restriction;
(c)any disposal under Part 6 of the 1995 Act (mental disorder), or where there is a hearing of evidence in mitigation; and
(ii) a continued preliminary hearing, except where designated as a hearing at which any of the following matters is intended to be heard-
(a)a preliminary minute;
(b)a preliminary issue;
(c)a devolution or compatibility minute;
(d)an application under section 275 of the 1995 Act;
(e)a petition to recover documents under a specification of documents where the petition is opposed or likely to involve substantive legal argument,
or an evidential hearing or any other hearing involving substantive legal argument;
(f)except on cause shown, the auditor shall not have regard to any information produced by counsel at taxation which was not made available to the Board at the time the Board made the offer to counsel which is subject to taxation;
(g)although counsel may keep records of professional services based on the number of hours expended on the work, counsel shall not be entitled to fees at an hourly rate in addition to the fees prescribed in the Table of Fees; and
(h)correspondence, telephone calls, written work (other than work for which fees are prescribed in the Table of Fees) and meetings between counsel acting for the same assisted person are not allowable as separate items and shall be subsumed within the fees set out for the conduct of a hearing.
Appeals[90][91]
4. [92]In a hearing as specified in paragraph 1(c) or (d) or 2(b) of Chapter 1 or 2 of Part 2 of the Table of Fees which is set down for half a day or longer or where the appellant has been sentenced to a period of imprisonment of 10 years or more, to life imprisonment or where an order for lifelong restriction has been made, the fee payable shall be that in the range specified in paragraph 3(d) of Chapter 1 or 2 of Part 2 respectively.
4A. [93]Where a hearing on a bill of advocation is set down for half a day or longer,counsel is to be paid (in addition to the fees payable under paragraph 2 of the applicable Chapter of Part 2 of the Table of Fees) a fee for relative written work in the range specified in paragraph 3(b) of the applicable Chapter of Part 2 of the Table of Fees.
5. Subject to paragraphs 9 to 11B below, the fees including those within a range of fees, as prescribed in Part II of the Table of Fees, shall include all preparation.
6. [94] Where counsel is seeking a higher fee within the range under paragraph 3(d) or (da) or [95] 6(a), (b), (c), (ca) or (cb) (hearings) of Chapter 1 or 2 of Part 2 he or she will need to justify this by establishing that due to the nature of the case an unusually high level of preparation was required or that any of the factors below exist and that they have had a significant effect on the conduct of the case:—
(a)novelty of the issues of law;
(b)unusually complex issues of fact;
(c)issues of considerable legal significance.
7. Where the Auditor determines the appropriate fee he or she shall specify which of the factors in paragraph 6 justify such a fee and the extent to which each of those factors contribute to that fee.[96]
8.Where counsel is seeking a higher fee within the range under paragraph 2(a), 3(a), (b), (e), 6(d) or 11 (written work) of Chapter 1 or 2 of Part 2 he or she will need to justify this by reference to either or both of the following factors:—
(a)the content rather than the length of the document; and
(b)the amount of documentation necessarily referred to.
9.Where a hearing has been fixed in an appeal under paragraph 3, 4 or 6 of Chapter 1 or 2 of Part 2 of the Table of Fees counsel may claim an additional fee for preparation for the hearing only where:—
(a)it is set down for a day or more and counsel has spent more than 2 hours per day on preparation; or
(b)the case is abnormal in magnitude, or difficulty, or in any other material respect.
10. Where an additional fee for preparation is claimed counsel must provide the Board with details of the nature of the preparation including:—
(a)where a higher fee has been claimed or received within a range of fees, identification of the part or parts of that fee which relate to those factors mentioned in subparagraphs (a) to (c) of paragraph 6 above or to the factor of an unusually high level of preparation;
(b)records providing a detailed summary of the nature of the work or, if applicable, the nature of the documentation perused at each stage of the process, the time taken and when and where the work was undertaken and the details of authorities referred to in the course of preparation; and
(c)any contemporaneous record or notes made in the course of preparation.
11.Except on cause shown, an additional fee for preparation shall only be allowable once to both junior and senior counsel notwithstanding that the assisted person may be represented by more than one junior or senior counsel or both during the course of the case.
11A. In assessing the amount of time for which an additional fee for preparation is payable the Board, or the Auditor as the case may be, will consider the amount of time that is reasonable having regard to the following factors:—
(a)the facts and circumstances of the case; and
(b)the extent to which payment for preparation is already covered by the prescribed fee or the fee deemed appropriate within the range of fees, taking into account that in cases set down for a day or more 2 hours preparation is covered by that fee by virtue of paragraph 9(a).
11B. [97]The additional fee shall be calculated by dividing the time allowed for additional preparation in terms of paragraph 11A above into units of 8 hours, each unit payable at the rate of two thirds of the prescribed fee or the fee deemed appropriate within the range of fees in Chapter 1 or 2 of Part II of the Table of Fees.
11C.—[98](1) This paragraph applies in relation to a hearing on appeal against conviction or conviction and sentence if rule 15.15A (requirement for case and argument) of the Act of Adjournal (Criminal Procedure Rules) 1996 applies to all aspects of the appeal.
(2) For the purposes of sub-paragraph (1), rule 15.15A is to be deemed to apply to an appeal if the court has ordered under rule 19.18A (presentation of summary conviction appeals in writing) of the Act of Adjournal (Criminal Procedure Rules) 1996 that rules 15.15A and 15.15B of those Rules are to apply to the appeal as if it were an appeal to which those rules apply.
(3) In respect of a hearing in the course of an appeal against conviction or against conviction and sentence to which this paragraph applies, a fee is to be paid under paragraph 3(da) of Chapter 1, or as the case may be Chapter 2, of Part 2 of the Table of Fees.
(4) In respect of a hearing in the course of an appeal against conviction or against conviction and sentence to which this paragraph does not apply, a fee is to be paid under paragraph 3(d) of Chapter 1, or as the case may be Chapter 2, of Part 2 of the Table of Fees.
11D. [99]In Chapters 1 and 2 of Part 2 of the Table of Fees, the fees prescribed in paragraphs 1 to 6 do not apply to a hearing of the type described in paragraph 6A in each of those Chapters.
11E. [100]This paragraph applies to a hearing of the type described in paragraph 6A of Chapters 1 and 2 of Part 2 of the Table of Fees if the Board is satisfied that a fee in accordance with paragraph 6A(a) of the relevant Chapter is justified on the grounds that the hearing involved a debate, motion for re-trial or further procedure.
11F. [101]A fee is to be allowed to counsel for an opinion concluding that there is no stateable appeal case only if—
(a)the counsel who prepared the opinion did not represent the assisted person at the trial; and
(b)the Board, or as the case may be the auditor, is satisfied that it would not have been possible, or would not have been reasonable, in the circumstances for the counsel who represented the assisted person at the trial to have prepared the opinion.”.
Proceedings in the High Court of Justiciary (other than appeals) and the Sheriff Court
12. Subject to paragraphs 13 to 15 below, the fees prescribed in Parts I and III of the Table of Fees in this Schedule shall include all preparation.
13. A fee for separate preparation shall be allowed only on the following conditions:–
(a)such a fee is allowable only once in any case to junior or senior, [102]junior and senior and junior and junior counsel representing an applicant or assisted person, notwithstanding that the applicant or assisted person is represented by more than one junior or senior counsel during the course of the case;
(b)in allowing such a fee the Board, or as the case may be the auditor, must be satisfied that the level of preparation was necessary, reasonable and proportionate in all the circumstances of the case; [103]
(c)counsel shall produce records providing a detailed summary of the nature of the work or, if applicable, the nature of the documentation perused, at each stage of the process, the time taken and when and where the work was undertaken and shall retain and produce, if requested, any contemporaneous record or notes made in the course of preparation[104]; and
(d)[105]such a fee is not payable until the case to which it relates has concluded unless claimed during the emergency period [105a].
14. A fee for separate preparation shall be allowed only in any case –
(a)where–
the case is disposed of at a hearing under section 76 of the 1995 Act; or
the case proceeds to trial [106]or for a hearing where a fee is payable at the full rate for a trial under paragraphs 4(q) to (t) of Chapters 1 and 2 of Part 1 or paragraphs 3(p) to (t) of Chapters 1 and 2 of Part 3 of the Table of Fees, the level of preparation is that to which paragraph 15 (d) [107]below applies
and the level of preparation is that to which paragraph 15 (d) [108]below applies; or
(b)where a plea of guilty is tendered, or a plea of not guilty is accepted or where a case is deserted simpliciter or deserted and the Crown does not intend to re-raise proceedings, up to and including the first day of trial and the case does not proceed to trial, and the level of preparation is that to which paragraph 15 (c) below applies.
15. A fee for separate preparation allowed under paragraphs 13 and 14 above shall be calculated by reference to the [109]total number of actual sheets of documentation considered by counsel as follows:–
(a)no fee for separate preparation for the first 1,000 sheets shall be allowed under any circumstances;
(b)each range set out in sub-paragraphs (c) and (d) below specifies a total number of days which may be allowed per total number of sheets within the range, and each day shall be paid at the rate of two-thirds of the fee prescribed for the conduct of a trial at paragraph 3 of Chapters 1 and 2 of Part I, or as the case may be, paragraph 2 of Chapters 1 and 2 of Part III of the Table of Fees in this Schedule depending on the nature of the charges and the status of counsel;
(c)the ranges are–
(i)3 days are allowable for 1,001-3,500 sheets;
(ii)5.5 days are allowable for 1,001-7,000 sheets;
(iii)7.5 days are allowable for 1,001-10,000 sheets;
(iv)2.5 days are allowable for each additional 2,500 sheets;
(v)Deleted[110]
(d)[111]where the total number of sheets exceeds 7,500, 2.5 days are allowable for each additional 2,500 sheets;
(e)[112]Omitted
(f)a fee for separate preparation allowed under–
(i)[113]paragraph 14(a) above shall be calculated on the basis of sub-paragraph (d) ; or
(ii)paragraph 14(b) above shall be calculated on the basis of sub-paragraph (c) [114]
[115]15A. (1) Where a case has more than one preliminary hearing, the fee payable for any further preliminary hearings as prescribed in paragraphs 1B(a) of Chapters 1 and 2 of Part 1 of the Table of Fees is reduced as specified in sub-paragraphs (2) and (3).
(2) Where charges in a case have been split into more than one indictment, the fee payable for any further preliminary hearings is half that prescribed.
(3) Where in a case an indictment is deserted and subsequently re-raised, the fee for any further preliminary hearings is two thirds that prescribed.
[116]15B. For the purposes of the fees prescribed in paragraphs 1A and 6 of Chapters 1 and 2 of Part 1 and paragraphs 1A and 5 of Chapters 1 and 2 of Part 3 of the Table of Fees-
(a) the fee for drafting defence statements is payable only once in any case, regardless of how many statements are drafted in that case;
(b) a fee is only payable for a second necessary note in a case on cause shown and where counsel establishes there were exceptional circumstances in the case, and in any case fees for no more than two necessary notes are payable; and
(c) where written work, for which there is a prescribed fee, or a necessary note is drafted and revised, the fee payable for the written work or necessary note is, if there is more than one counsel, shared equally between counsel who made the revisals.
(a)information shall be provided by or on behalf of counsel as to the reason for the adjournment; and
(b)no fee shall be allowed by the Board or the auditor where satisfied that an adjournment was caused because the defence was not prepared to proceed, or where the preliminary hearing could have been altered in advance under section 75A(5) of the 1995 Act.
[119]16A. (1) A consultation fee is payable under paragraph 5 of Chapter 1 or 2 of Part 1 and paragraph 4 of Chapter 1 or 2 of Part 3 of the Table of Fees only once a day for a case, regardless of how many consultations in relation to that case are held that day. This applies where any of the following parties attend more than one consultation in one day-
(a)the same counsel and solicitor;
(b)the same counsel and accused;
(c)the same counsel and Crown counsel or Procurator Fiscal; or
(d)the same counsel and expert.
(2) A fee for an abortive consultation is payable under paragraph 5A of Chapter 1 or 2 of Part 1 and paragraph 4A of Chapter 1 or 2 of Part 3 of the Table of Fees where counsel attended for a consultation but the consultation did not proceed due to no fault of counsel.
(a)a trial shall be taken to commence when the jury is empanelled;
[120](aa) where a trial, or other hearing where a prescribed fee is payable at the full rate for a trial, exceeds 30 days in total, the fee payable is reduced by 10% for every day in excess of 30 days;
(ab) where counsel attends in one day more than one trial, or other hearing where a prescribed fee is payable at the full rate for trial, the fee payable to counsel for the first trial or other hearing of that day is as prescribed and the fee payable for any subsequent trial or other hearing is half that prescribed in those Parts;
(b)where the trial of an accused person proceeds in respect of more than one offence, the fee payable in terms of paragraphs 3 of Chapters 1 and 2 of Part I and paragraphs 2 of Chapters 1 and 2 of Part III shall be that for the offence for which the highest fee is prescribed;
[121](ba) where at a trial diet there is more than one accused and counsel represents an accused who pled guilty at an earlier diet, the fee under paragraph 3 of Chapter 1 or 2 of Part 1 or under paragraph 2 of Chapter 1 or 2 of Part 3 is not payable, but a fee may be payable on cause shown under paragraph 4(pa) of Chapter 1 or 2 of Part 1 or paragraph 3(oa) of Chapter 1 or 2 of Part 3;
(c)where counsel conducts a number of deferred sentences on the same day the prescribed fee shall be reduced by half for a second deferred sentence, and by a further half for a third and any subsequent deferred sentence;
(d)the fees allowed under Part III shall be no more than four fifths of the fees prescribed in Part I of the Table of Fees in this Schedule, and except on cause shown, fees for counsel in the Sheriff Court shall not be allowable for attendance at hearings which are routine or procedural only or which do not materially advance the case;
(e)[122]subject to paragraph (ee), the prescribed fees for a trial or any hearing shall include all work undertaken in the case that day;
[123](ee) a fee for a consultation with an expert, in addition to the prescribed fees for a trial or a hearing under paragraph (e), may be payable where counsel establishes that-
(i)previous attempts had been made to consult with the expert which were unsuccessful;
(ii) the need to hold the consultation was urgent; and
(iii)the consultation took place on the same day as the trial or hearing before 0800 hours or after 1800 hours due to the limited availability of the expert;
(f)fees for a waiting day shall be allowed on the basis of paragraph 18 below;
(g)the fees prescribed in Parts I and III cannot be increased or reduced in terms of paragraphs 4 to 11 above;
(h)[124]where the trial of an accused person proceeds in respect of the offence of attempting to pervert the course of justice, the fee payable in terms of paragraph 3 of Chapter 1 or 2 of Part I and paragraph 2 of Chapter 1 or 2 of Part III shall be that for the offence to which the charge of attempting to pervert the course of justice relates. Where the offence to which the charge relates is not prescribed in Schedule 2, the fee payable shall be in terms of paragraph 3(b) of Chapter 1 or 2 of Part I and paragraph 2(b) of Chapter 1 or 2 of Part III; and
[125](ha) where a trial of an accused person proceeds in respect of the offence of conspiracy to commit an offence, the fee payable in terms of paragraph 3 of Chapter 1 or 2 of Part 1 and paragraph 2 of Chapter 1 or 2 of Part 3 of the Table of Fees, is that for the offence to which the charge of conspiracy relates. Where the offence to which the charge of conspiracy relates is not prescribed in Schedule 2, the fee payable is in terms of paragraph 3(b) of Chapter 1 or 2 of Part 1 and paragraph 2(b) of Chapter 1 or 2 of Part 3 of the Table of Fees.
(i)[126]where an accused person pleads guilty at a hearing fixed for trial before the jury is empanelled, or where the case is brought to an end by the Crown’s acceptance of a plea of not guilty, or where, following the court deserting the trial simpliciter or pro loco et tempore, the indictment falls or, for any other reason, is not brought to trial and where no order is made by the court to postpone or appoint a further trial diet, the fee payable shall be two-thirds of the fee payable in terms of paragraph 3(a) or (b) of Chapter 1 or 2 of Part I and paragraph 2 of Chapter 1 or 2 of Part III; and
(ii)[127]in the same circumstances as those described at paragraph (i) above, but where the category of charge falls under paragraph 3(c) of Chapter 1 or 2 of Part I, the fee payable shall be that prescribed in paragraph 4(a) of Chapter 1 or 2 of Part I.
17A. [128]Where counsel claims a fee in respect of the first diet under paragraph 3(t) of Chapter 1 or 2 of Part III of the Table of Fees, the fee shall only be payable where a plea of guilty is tendered at that hearing or where the case is brought to an end by the Crown’s acceptance of a plea of not guilty, withdrawal of the libel, desertion of the diet or by other means.
(a)the fee payable to junior counsel, depending on the status of counsel in the case, for such a day shall be–
(i)half of the fee prescribed at paragraph 4(a) of Chapter 1 of Part I of the Table of Fees or at paragraph 3(a) of Chapter 1 of Part III depending on the applicable court, where no travel for the purposes of paragraph 7 of Chapter 2 of Part I or paragraph 6 of Chapter 2 of Part III is incurred; or
(ii)two-thirds of the fee prescribed at either paragraph referred to in sub paragraph (a)(i) above, depending on the applicable court, where such travel is incurred;
(b)the fee payable to senior counsel for such a day shall be–
(i)half the fee prescribed at paragraph 4(a) of Chapter 2 of Part I of the Table of Fees or at paragraph 3(a) of Chapter 2 of Part III depending on the applicable court, where no travel for the purposes of paragraph 7 of those Chapters is incurred; or
(ii)two-thirds of the fee prescribed at either paragraph referred to in sub paragraph (b)(i) above, depending on the applicable court, where such travel is incurred;
(c)no other chargeable work shall be undertaken in the case that day; and
(d)provided that counsel remains available at court in case the trial proceeds that day, chargeable work in respect of other cases may be undertaken on that day, other than conducting a hearing or trial.
19.[129] Where counsel claims a fee in respect of paragraph 2 of Chapter 1 or 2 of Part I, or paragraph 1B of Chapter 1 or 2 of Part III, of the Table of Fees–
(a)subject to [130]sub-paragraphs (b) and (c) below, no fee shall be payable under paragraph 1B, 3 or 4 of each Chapter of Part I, or paragraph 2 or 3 of each Chapter of Part III, of the Table of Fees; [131]
(b)a fee shall be payable for all post conviction hearings including hearings for which a prescribed fee is set out in paragraphs 4(j), (k), (l) and (m) of each Chapter of Part I, and paragraphs 3(j), (k), (l) and (m) of each Chapter of Part III, of the Table of Fees[132]; and
(c)where a case proceeded by indictment, was deserted, and proceedings were re-raised and disposed of by way of a hearing under section 76 of the 1995 Act, the following fees are chargeable by counsel in the Tables of Fees;
(i) a fee for the section 76 hearing under the re-raised indictment, as prescribed in paragraph 2 of Chapters 1 and 2 of Part 1 and paragraph 1B of Chapters 1 and 2 of Part 3, and fees for any court hearings which took place under the initial indictment, as prescribed in paragraph 4 of Chapters 1 and 2 of Part 1 and paragraph 3 of Chapters 1 and 2 of Part 3; or
(ii) fees prescribed in Parts 1 and 3 of the Table of Fees for any hearings, including trial, which took place under the initial indictment, and fees for any hearings under the re-raised indictment, as prescribed in paragraph 4 of Chapters 1 and 2 of Part 1 and paragraph 3 of Chapters 1 and 2 of Part 3, but not the fee for the section 76 hearing under the re-raised indictment, as prescribed in paragraph 2 of Chapters 1 and 2 of Part 1 and paragraph 1B of Chapters 1 and 2 of Part 3.
[133]20. (1) The supplementary fee for travel prescribed in paragraph 7 of Chapters 1 and 2 of Part 1, paragraph 9 of Chapters 1 and 2 of Part 2 and paragraph 6 of Chapters 1 and 2 of Part 3 of the Table of Fees is chargeable only as provided for in this regulation.
(2) The fee is only chargeable where the travel involves a round trip exceeding 60 miles in each direction.
(3) The fee is not chargeable for travel to courts in any of the following locations for the purposes of a trial or any other hearing-
(a) Edinburgh;
(b) Glasgow;
(c) Airdrie;
(d) Alloa;
(e) Dunfermline;
(f) Falkirk;
(g) Hamilton;
(h) Kirkcaldy;
(i) Lanark;
(j) Livingston;
(k) Paisley;
(l) Stirling.
(4) Where counsel travels to a court in any of the locations listed in paragraph (3) for the purposes of a trial or any other hearing and also attends to business relating to any case on the same day, (subject to paragraph 5) the fee is not chargeable.
(5) The fee may be chargeable in the circumstances set out in paragraph (4) where the Board is satisfied that the trip relating to business in any case is separate and additional to the trip relating to the court.
(6) Counsel must, if required, produce vouching of the travel undertaken.
(7) The fee is chargeable once only in respect of each round trip, irrespective of the number of cases for which the trip is undertaken.
(8) The fee chargeable excludes any travel costs.
20A.[134] Travel costs are chargeable as an outlay only in circumstances where a supplementary fee for travel is chargeable under paragraph 20.
[135]21. Necessary accommodation and subsistence is chargeable only-
(a) as an outlay up to the amount specified in paragraph 8 of Chapters 1 and 2 of Part 1, paragraph 10 of Chapters 1 and 2 of Part 2 or paragraph 7 of Chapters 1 and 2 of Part 3 of the Table of Fees;
(b) where a supplementary fee for travel is chargeable in accordance with paragraph 20; and
(c) on cause shown.
Interpretation
22. In this Schedule–
[136]“the 2010 Act” means the Criminal Justice and Licensing (Scotland) Act 2010;
[137]“commercial premises” means a bank, building society, post office, security vehicle, currency exchange or licensed gambling premises;
“consultation” means a formal meeting, [138]including meeting by means of a conference call, with counsel on the instructions of the solicitor concerning a significant issue which advances the cause taking place usually, but not always, in the presence of the accused or an expert witness, including formal meetings with Crown Counsel taking place following the first preliminary hearing;[139]
“documentation” means Crown statements, precognitions, productions, including defence productions[140], and labels;
“emergency period” means the period beginning on 1 July 2020 and ending on the date on which Part 9 of schedule 4 of the Coronavirus (Scotland) Act 2020(c) expires in accordance with section 12 of that Act [140a];
“retail premises”[141] means any premises, other than commercial premises;
“waiting day” means a day where counsel is required to attend court and does so but the trial does not proceed; and
“sheet” shall consist of 250 words and numbers, or each minute of an un-transcribed tape.