The option to accept judicial expenses is only open to you where fees and outlays are recovered by virtue of an award of expenses or an agreement as to expenses in favour of the assisted person.
Where you opt to be paid the amount of the judicial expenses, you will be responsible for drafting the judicial account, having it taxed and recovering the judicial expenses.
You must pay us the recovered expenses in terms of section 17(2A) of the Act. This is a clear provision of the primary legislation unaffected by the 2002 Regulations. We will deduct any payments to account made in respect of the proceedings and pay you back the net balance.
Where you opt for judicial expenses you should not lodge an advice and assistance account. This is in line with the arrangement agreed by the Executive, the Law Society and us in connection with the question of aggregation.
The fees regulations provide [regulation 3(5)] that
The solicitor acting at the conclusion of the proceedings can still opt to accept the judicial expenses even if an earlier solicitor has lodged a legal aid account. We will tell the solicitor acting at the conclusion of the proceedings what fees we have paid to the previous solicitor to allow them to make an informed judgement as to whether to accept the balance of the judicial expenses or to lodge a legal aid account.
Where you do not opt to accept the judicial expenses, you and counsel must be paid in accordance with the schedules attached to the civil fees regulations. The decision to opt not to accept judicial expenses and lodge a legal aid account is irrevocable.
Where you opt to lodge a legal aid account we will, if appropriate, arrange for the drafting of a judicial account, having it taxed and recouping the judicial expenses. We will need information from you to enable us to do so.
The regulatory framework is subject to a general statutory prohibition against solicitors and counsel taking any payment where legal aid is available to a person in connection with any proceedings, during any period where legal aid is so available, except in accordance with the 1986 Act (section 32 of the Legal Aid (Scotland) Act 1986).