Assessed fees where there is no prescribed fee

In appeal 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”.

Where the notes on the operation does not specifically preclude payment for a work item we may allow a reasonable fee for the work with regard to all the circumstances, including the general levels of fees.

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 SLAB 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.

Where you attend an appeal hearing which is not prescribed we must allow reasonable remuneration for the work with regard to all the circumstances, including the general levels of fees in the Table of Fees.

For example:

• where a hearing on interim suspension is held in advance of the substantive appeal hearing it may be reasonable to have regard to the level of fee payable for other procedural diets under Chapters 1 and 2 of Part 2 applicable to the type of appeal
• where a compatibility issue has arisen in the course of an appeal against conviction there may be a hearing in the High Court on an application for permission to appeal to the Supreme Court of the United Kingdom. It may be reasonable to have regard to the level of fee payable under paragraph 6 of Chapters 1 and 2 of Part 2.

As Part 2 of the Table of Fees does not include a fee for an abortive consultation, we must allow a reasonable fee for the work done with regard to all the circumstances, including the general levels of fees in the Table of Fees.

In doing so we will have regard to the fee prescribed for an abortive consultation under Part 1 and Part 3 which is the equivalent of half of the full consultation rate.

Paragraph 3(h) of the notes on the operation states:

“correspondence, telephone calls 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.”

 We must disallow any fee claimed in respect of correspondence sent by you.

Paragraph 3(i) of the notes on the operation states:

“all written work done (including work revising any document) is included within the fees payable to counsel and, except for written work for which a fee is separately prescribed in the Table of Fees, no separate charges may be made.”

Where the written work relates to a type of appeal for which there is a prescribed fee we must disallow any written work where any other fees are payable to you in the case unless the written work is prescribed within the Table of Fees.

For example, where you draft an application for a stated case no separate charges may be made.

Where the written work relates to a type of appeal for which there is no prescribed fee, in line with AB previously referred, we must allow a reasonable fee for that written work.

For example, where you drafted an ‘application for permission to appeal’ or ‘written submissions’ seeking leave from the High Court to appeal to the Supreme Court of the United Kingdom at the conclusion of the case we must allow a reasonable fee having regard to all the circumstances including the general levels of fees payable in the Table of Fees.

Where you provide the agents with a necessary note we will have regard to the fees under paragraph 6 (part 1) and paragraph 5 (Part 3) and the Decision-Makers’ Guidance that exists for work of that nature.