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 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.
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.