Assessed fees chargeable where there is no prescribed fee

In criminal first instance proceedings the overwhelming majority of fees are payable as prescribed fees.

However, paragraph 2 of the notes on the operation makes provision to allow a reasonable fee in certain circumstances. It states:

“Where the Table of Fees does not prescribe a fee for any item of work the Board, or as the case may be the auditor, shall allow such fee as appears appropriate to provide reasonable remuneration for the work with regard to all the circumstances, including the general levels of fees in the Table of Fees”.

In certain circumstances it may be that the application of paragraph 2 of the notes on operation require us to consider items of work as an ‘assessed fee’.

Our approach to assessment in the small number of instances where these provisions are engaged is to have regard to the Inner House decision of AB [2021] CSIH 3, where the court clarified (albeit in the context of civil proceedings) that:

the reference to “including the general levels of fees in the Tables of Fees” does not mean that we or the Auditor should treat the fee as if it were a prescribed fee
a more flexible and wider approach, having regard to all the circumstances requires to be adopted. One of the circumstances is the general levels of fees in the Tables of Fees, but it is not the only one.

The overriding aim is to provide reasonable remuneration for the work.

Written work

Where the only work done by any counsel in the case is written work which is not prescribed within the Table of Fees we may consider payment for that written work having regard to all the circumstances including the general levels of fees payable in the Table of Fees.

Extradition cases

There is no Table of Fees for extradition proceedings.

However, in accordance with a tripartite agreement between the Scottish Government, Faculty of Advocates and SLAB it was agreed that until prescribed fees could be introduced payment could be made at the rates prescribed in respect of conviction or conviction and sentence appeals.

This applies whether the extradition proceedings are at first instance or on appeal.

In such cases you should therefore refer to the Legal Aid Guidance in respect of – Criminal Appeals, Extradition and UKSC under The Criminal Legal Aid (Scotland) (Fees) Regulations 1989’ for more information.

Preparation