Awards of judicial expenses

The option to seek to accept judicial expenses in preference to fees based on legal aid tables 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 your client.  We have a discretion as to whether to allow such an application.   We will ordinarily allow it in circumstances where the net effect of doing so is that there is no net loss or cost to the Fund in the case as a whole.

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 Legal Aid (Scotland) Act 1986.  This is a clear provision of the primary legislation unaffected by The Civil Legal Aid (Scotland) Regulations 2002.  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) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989] that:

• The total sum we pay to you or counsel involved in the proceedings cannot exceed the level of judicial expenses
• We must deduct from the sum payable in accordance with paragraph 3(b) (the judicial expenses) the amount of any payment made or due to be made to any solicitor or counsel who previously acted in the proceedings.

The solicitor acting at the conclusion of the proceedings can still opt to accept 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 seek the judicial expenses as payment, you and counsel will be paid in accordance with the schedules attached to the civil fees regulations. Lodging a legal aid account is intimation of your decision to seek payment in accordance with the legal aid table.  This decision once made is irrevocable.

Where you opt to lodge a legal aid account we will, if appropriate, separately arrange for the drafting of a judicial account, having it taxed and recouping the judicial expenses for the Fund.  We will need information from you to enable us to do so.

• You must consult with any counsel who was acting for your client before seeking to exercise the option.
• You must exercise the right to opt to seek judicial expenses at the conclusion of the proceedings and before lodging a legal aid account.
• If, having given us an early indication that you intend to opt for judicial expenses, you are unsuccessful in recovering these we will accept a legal aid account at a later stage and if necessary we may waive the time bar provisions. In the meantime, nothing must be done to reduce the level of property recovered or preserved in the proceedings to the extent that this could affect the likely net liability to the Fund.
• If you have sought and in turn accepted the judicial expenses, you cannot then send us a legal aid account under any circumstances.
• The option to accept judicial expenses is not open, in terms of the fees regulations, to solicitors who are not acting at the conclusion of the proceedings.
• You can both lodge a legal aid account when you cease to act in the case or, by agreement with the solicitor taking over the case, await the conclusion of the case and share the judicial expenses.
• Where it is reasonably anticipated that expenses will be recovered, especially where the new solicitor will not be providing civil legal aid, you should discuss the issue with the new solicitor. Expenses recovered after the transfer of agency must be paid into the Fund; a solicitor not providing legal aid is not in a position to opt to accept judicial expenses.

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 section 32 of the Legal Aid (Scotland) Act 1986.