Opting to accept judicial expenses: what you should do

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 total sum we pay to solicitors or counsel involved in the proceedings cannot exceed the level of judicial expenses and
  • 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 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.

Opting not to accept judicial expenses: what you should do

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.

Guidance and advice to consider in relation to judicial expenses

  • You must consult with any counsel who was acting for the assisted person at the conclusion of the proceedings before seeking to exercise the option.· You must exercise the right to opt to accept 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 will, if necessary, be prepared to waive the timebar 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.
  • Where, having recovered judicial expenses, you opt to accept these, 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. In this position you can either 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 the 1986 Act (section 32 of the Legal Aid (Scotland) Act 1986).

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