https://www.slab.org.uk/guidance/assessment-of-an-account-the-process-and-role-of-the-assessor-6/
https://www.slab.org.uk/guidance/assessment-of-an-account-the-process-and-role-of-the-assessor-6/
Where we receive an account we are obliged to assess the fees and outlays allowable, determine the sum payable out of the Fund and then pay that sum to you.
The purpose of this guidance is to facilitate the submission of an account that can be assessed by our staff and paid as claimed with minimum intervention or negotiation.
We are not a party to the proceedings and, as such, we will not have the same level of knowledge of the case as you do but you can assist us in the assessment of the account by ensuring that you provide a brief and focussed narrative in support of each charge so that we can better understand why it was necessary to have undertaken the work that you have.
Providing a narrative in support of charges will increase the chances of the account being paid as claimed or increase the amount we will be able to pay. In the vast majority of cases, where we consider it necessary to restrict or disallow a charge it will be because of a lack of specification provided in support of the claim.
The charge will often be reinstated, or the fee proposed increased, where you provide the further information that we require, so providing this up front will ensure earlier payment without the additional administration.
Disputes in relation to counsel’s (or solicitor’s) fees and outlays are not unique to legal aid accounts.
In the opinion of Lady Smith, in the Hearing on a Note of Objections to the Auditor’s Report in Petitions of Aberdeenshire Council for an Order freeing the children A, B and C for Adoption, [2006] CSOH 14, she said “the quantification and payment of lawyers’ fees has been the source of regular and unremitting anxiety, grief, frustration and even anger, for generations”.
That case like most disputes in relation to solicitors, or counsel’s, costs was in relation to a taxation where the legal aid Fund was not the paying party.
Where we are unable to make payment at the sum which is claimed, the assessment of an account will be a two-stage process.
An offer of payment will be issued.
This means that we assess and pay the amount that we are satisfied we can allow on the information available.
An offered account will contain reasons as to why we are unable to pay any individual entry as claimed.
We will send the offer via email.
You should use the same email for any negotiations to ensure that all communications are contained within the same email trial.
This ensures that there is a complete audit trail to any negotiations.
Where the offer is accepted, that is the end of the process.
Where the offer is not accepted, you then have the opportunity to provide further information and/or documentation and to discuss any restriction with us.
We are not in a position to know whether a restriction is to be challenged or not until such time as you revert back to us.
This is the second, or “negotiation”, stage.
Further information provided at this stage may well result in charges being reinstated.
In some cases it may be necessary to repeat the negotiation stage on more than one occasion.
Where a series of negotiations take place we will make payment, where possible, of any undisputed sums where we are satisfied that they can be paid.
The assessment process is designed to identify those charges which are incapable of resolution.
This process will result in the settlement of the overwhelming majority of accounts that we receive.
It is only at this point, and in the highly unlikely event that we are unable to reach an accommodation on the amount payable, that the assessment process with us come to a conclusion and you are then entitled to exercise your right to taxation.
The need to proceed to taxation is rare and we will make a concerted effort, wherever possible, to compromise and resolve disputes without incurring the time and expense of taxation.
Accounts staff are required to assess an account objectively and determine, on the information before them, whether work has been actually and reasonably done, due regard being had to economy.
In doing so, we must be satisfied that the work carried out was done in the most efficient and cost effective manner, consistent with the giving of proper advice and representation, as appropriate, to the client, and what the proper level of remuneration should be.
In other words, would a prudent counsel, aware of the basis of assessment of their account, have considered it necessary to undertake the work and was the work actually and reasonably undertaken, due regard being had to economy.
The decision is a matter of balanced judgement rather than arithmetical calculation.
Awareness of these criteria, the recording of work and sufficient narrative in your account should result in an account paid without the need to request further information.
It is important to bear in mind that it is not necessarily the time spent or amount claimed which will be payable, it is the time or amount claimed that is reasonable that is payable.
Assessment of an account involves making a judgment, in respect of individual items of work and the case as a whole.
In order that we can reach an informed view on the charges in an account the narrative must contain a sufficient level of detail.
For example, where your account includes a charge for a consultation you should provide details of the status in which you have acted, parties in attendance purpose of the consultation and how the case was progressed and times engaged in the preparation and attendance at the consultation sufficient to justify the fee that has been claimed.
This does not mean that we expect, or require, you to provide every word of the advice given or every detail on the law and procedure to be adopted – often advice on a particular procedure will be relatively standard – but you should always provide a sufficient narrative in support of a charge.
The minimum requirements for your accounts are a detailed narrative, sufficient to determine the reasonableness of the work.
Although this was in the context of a solicitor’s account Mr McDougall, former Auditor of Court, Glasgow made the following observations in an Auditor’s report in PF (Glasgow) -v- WW issued on 7 October 1983 regarding narrative in an account.
He said: “I would have to say that agents who elect to charge a detailed account oblige themselves to provide details of sufficient clarity that would make sense to anyone reading the narrative(s) in respect of any given charge, the more so in Third Party Paying accounts of this nature where the recipient has no personal knowledge of the case or its progress.”
He continued: “The composing of narratives should have the effect of focussing the mind of the presenter of the account and the result should be the removal of doubt in the mind of the recipient. The propriety of the charges is oft times resolved in pursuance of this exercise”.
Although counsel’s fees under legal aid are chargeable more on the basis of standard fees rather on a detailed basis those observations can equally apply to counsel’s fees.
In assessing an account we will not only restrict any charges that appear to be excessive, unvouched or for which there was no cover, but we will increase any fees where they have been understated or add to the account any fee which has been omitted or substitute the appropriate fee where this is obvious and appropriate.
We can only allow a charge for work done or outlays incurred supported by appropriate evidence and justified in the account.
Where matters cannot be resolved through the normal process of negotiation, counsel (or SLAB) has a right to refer the matter to the Auditor, subject to the guidance below.
Given the comprehensive nature of the Table of Fees and notes on the operation the auditor’s role can be limited even where a case proceeds to taxation.
Paragraph 1 of the notes on the operation states:
“Subject to the following provisions of this Schedule, fees including those within a range of fees, shall be determined or calculated by the Board, and in the event of a question or dispute by the auditor, in accordance with the Table of Fees in this Schedule …”
All work must be calculated in accordance with the Table of Fees, where appropriate, including those cases which are subject to taxation.
The purpose of this paragraph is to make clear that there is limited scope for the exercise of discretion in the calculation of prescribed fees and they are subject to the constraints contained in the Tables of Fees.
Paragraph 3(f) of the notes on the operation states:
“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.”
In the event that the case is referred to the Auditor, you must provide us with any information that you intend to provide in support of the claim before it can be considered.
While there is a statutory right to taxation, it is not a universal remedy for a range of issues that may arise at the assessment stage.
It is limited in a number of ways.
For example, it is primarily our decision whether an account submitted to us is competent and falls to be assessed.
It is not a decision of an auditor.
This may arise, for example, in situations where:
We may make this decision, subject always to judicial review, at any time whether an account is identified and rejected immediately on its receipt, or is identified thereafter in the course of being processed for assessment.
It is inherent in our regulations that the account must have been assessed before it is lodged for taxation.
Taxation is premature in circumstances where we are unable to finalise the assessment of an account.
This may arise in circumstances where we have paid on offer but you have made no meaningful attempt to negotiate or agree the account, or where we have requested information, documentation or perhaps even the file and such information has been withheld.
Our position is that it is an abuse of the taxation process to lodge an account for taxation in these circumstances, and any reference to the auditor will be challenged.
Where we are unable to reach an accommodation on the fees and outlays payable from the Fund provision is made which allows you to exercise your right to taxation.
Taxation is the process where an independent determination of fees is carried out by the Auditor.
At the conclusion of the taxation having considered all the documentation and where appropriate heard submissions, the Auditor issues a report.
In terms of regulation 11(1) of the Criminal Fees Regulations, if any question or dispute arises between us and a solicitor or counsel as to the amount of fees or outlays, the matter shall be referred for taxation by the auditor.
For taxations under legal aid the auditor is:
The regulatory provision for an account being lodged with the auditor is simply a link into the wider system of taxation in Scotland.
The normal policies and practices surrounding the taxation of accounts apply, and the auditor has a wide discretion in the way in which a taxation is conducted.
The role of the auditor in a legal aid case remains the same as in any other taxation.
In this regard, the respective roles of the auditor and the court were defined by Lord Woolman in the case of Marilyn Stewart and others v Mrs. Amanda Reid and another [2015] CSOH 175 at paragraphs [24] and [25]:
“[25] From those authorities I derive the following propositions regarding the respective roles of the Auditor and the court:
It is not the function of the auditor, as identified at bullets a. and b. to interpret the legal aid legislation or to attempt to attach a value to work that is not chargeable due to a more fundamental cause, for example that the work was undertaken or an outlay incurred:
When a case has been lodged for taxation you will require to comply with the procedures that are set down by the relevant auditor which will ordinarily follow the procedures laid out in:
In certain circumstances a Note of Objections to the Auditor’s report can be taken if it is considered the Auditor has gone wrong.
In terms of regulation 11(3) or 11A of the Criminal Fees Regulations, SLAB and any other party to a reference to the Auditor have the right to state written objections to the court in relation to the Auditor’s report within 14 days of the issue of that report.
For the purposes of this regulation the “the court” means:
It should be borne in mind, before taking a note of objections to the Auditor’s report, that the Auditor has a wide discretion.
The court’s role in challenges to the exercise of that discretion is a limited one and analogous with those available in a judicial review.
The leading modern authority is Shanley v Stewart [2019] CSIH 15, Lord President (Carloway) delivering the opinion of the court, at [25], states:
“The court can interfere only if the Auditor has misdirected himself in law, taken irrelevant circumstances into account, failed to take into account relevant circumstances or misunderstood the factual material before him. Where his decision depended on the exercise of discretion, it will be susceptible to being overturned only where it is such that no reasonable auditor could have reached it.”
Auditor’s decisions are not binding on any other auditor although they may well be persuasive.
In terms of part 3, paragraph 18 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, the Auditor of the Court of Session must issue guidance to the auditors of court about the exercise of their functions.
The guidance may, in particular, include guidance relating to the types and levels of expenses that may be allowed in an account of expenses.
Taxation decisions, sometimes only in the form of a taxed account, may do no more than value the work or outlays incurred in the circumstances of the account.
This together with the lack of any requirement for an auditor to issue detailed reasons, the role of the auditor being a “practical jurisdiction” – see Marilyn Stewart and others v Mrs. Amanda Reid and another [2015] CSOH 175 at paragraphs [26] to [29] – means that most decisions have limited practical effect beyond the circumstances of the particular account that is the subject of taxation.
Other decisions, however, often in the form of a Note or Report, may set out certain general observations or broad principles and where this is so they will have guided our decisions and approach to taxation.
There are some decisions which have been instrumental in forming our approach and the content of this Guidance.
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