Affidavits (excluding automatic legal aid)

Framing an affidavit is chargeable per “sheet” i.e. 250 words or numbers.  The prescribed framing fee subsumes the notarising fee.

Although there is no corresponding fee prescribed under Part 1, Schedule 3 (automatic legal aid) for framing an affidavit, we would consider a framing fee under paragraph 3 of Schedule 5 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989.

Copies of all affidavits, including supplementary affidavits should be provided.

Precognitions

Precognitions are charged depending on whether the work was done by a member of the solicitor’s firm, or an independent solicitor or external precognition agent.

Taking precognitions in children’s hearings proof proceedings

Before precognoscing any witnesses, you should always seek to obtain disclosure of available evidence from the SCRA.

Your account should set out the steps that you took to obtain disclosure. If you continue to receive no response your account should clearly indicate this.

If you are advised by SCRA that they will not be in a position to make statements of material witnesses on their witness list available to you within a reasonable timescale this should be clearly marked in your account. In these circumstances it would be open to you to elect to precognose the witnesses.

What is considered to be a reasonable time scale?

This will depend on a number of matters, such as:

  • The date that the proof is set to call.
  • The date you received instruction.
  • Any specific urgency in relation to a particular witness.

Your account should clearly indicate the factors that you considered to be relevant in terms of the timescale whereby you opted to incur the increased expense.

If this is not clear from your account, we will question this with you at the accounts stage and, if deemed necessary, confirm the position with SCRA.

Formal witnesses

Formal witnesses are those witnesses whose evidence will not be challenged in court.  They may not add anything to the case or may simply add a link in the case (e.g. a photographer who took the photographs that the reporter is lodging as productions in the proceedings).

Unless you have received prior approval from us to take a precognition from a formal witness, we will abate any costs claimed for this work.

Joint precognitions

In cases involving more than one legally represented party (other than the Reporter), consideration should always be given to the sharing of statements and/or taking an appropriate statement jointly.

Where your account includes precognition work, it should be clear from the narrative what steps were taken to avoid the taking of a statement from a witness where that witness has already been precognosced.

If such steps are not taken, we may question this with each solicitor involved and may obtain further information from SCRA.

Precognition by member of your firm

Where the work is undertaken by you, or is allocated to a solicitor’s clerk, the time engaged is chargeable at the non-advocacy rate prescribed under paragraph 2(a) or (b) of Schedule 5 or paragraph 2(ii) of Schedule 3 plus a framing charge under paragraph 4(a) of Schedule 5 or paragraph 3(ii) of Schedule 3, and any necessary travel.

You should include the name of the staff member in the account narrative. If this is not provided, it will delay payment of the account.

Adequate justification must be provided if precognitions are taken by a qualified person. The case may involve grounds of a sensitive nature e.g. an offence against a child where it is better the solicitor interview the child or young witness rather than a precognition agent, or solicitor’s clerk.

A perusal of the precognition is not chargeable as this is included within the time charge for the precognition.  No internal communication instructing the work is chargeable.

Precognition by an independent solicitor or external precognition agent

Where an independent solicitor or external precognition agent is used by you, you must charge this as an outlay actually, necessarily and reasonably incurred.

You are entitled to include in your account a reasonable charge for the perusal of any statements from the precognition agent.

We will restrict any account where work done by an independent solicitor or external precognition agent is claimed as if it were done in-house.

Framing a precognition

The framing of a precognition is chargeable per “sheet” i.e. 250 words or numbers.

We will only pay for a precognition where it contains information relevant to your client’s own version of events, restricted to the salient facts. Any information added which was not given by that person will be abated, for example:

  • A lengthy narration or restatement of information on a form or an initiating document.
  • Details of your client’s personal and financial circumstances.
  • Entries reflecting discussions between you and your client that are more correctly considered as file notes covered by the time charge.
  • Information on case law or comments which have clearly not been made by your client.
  • Irrelevant or extraneous information.

Corroborative precognitions

Where your account features a charge for the precognition of police officers, we will not consider a charge for the framing of a corroborative statement.  However, the attendance taking the precognition will be allowed where you did not know that the precognition is simply corroborative until the interview.

In the vast majority of these situations, the precognitions that are produced simply read “I can corroborate the statement of Constable X”. As this is not a precognition, the framing charge shall be disallowed. If there is more than simple corroboration, a framing charge may be considered.

Where it becomes apparent that a police officer is reciting the contents of a police interview that has already been covered in another precognition, again we would expect the time to be restricted and the framing charge to only cover that information which is additional.

This matter was taxed in a criminal matter in Hamilton in the case of PF –v- Thomas Gerald Delaney [22 November 1976]. The Auditor supported the Law Society’s view and the relevant comments from the Auditor’s report have been noted below for information.

“The extended precognition of Angus Jackson reads “I can corroborate the statement of Constable Green to ‘A’ in the margin”. The extended precognition of David Wilson reads “I can corroborate in full the statement of Constable Graham. I can identify the accused”. Mr Russell submitted that at least half-fees should be allowed and Mr Wood (for the Law Society) argued that in this situation time charges only should be allowed.

There is no dispute between parties that a time charge was included in the account for interviewing Angus Jackson and David Wilson, the two police witnesses. The dispute was in connection with the additional charges for the drawing and extending of the thirteen words in Wilson’s precognition and fifteen words in Jackson’s precognition.

Mr Russell was unable to produce the notes taken at the interviews with the police constables from which he says he drew the precognitions. I would have expected in the interests of economy that it might not have been necessary to draw and extend the twenty-eight words if the original notes were available.

In the circumstances, I have disallowed the charges for drawing and extending these two precognitions on the basis that due regard should be paid to economy when the work is done and in the knowledge that the solicitor had received a time charge when he attended on the witnesses at which time he must surely have written almost as many words as are shown on the typewritten precognitions. Even if the solicitor wished a typewritten copy, the time involved must have been minimal.”

Taking precognitions

All work should be planned and carried out efficiently and have due regard to economy. You should attempt to take telephone precognitions where possible, and attend on witnesses who live in the same area on the same day.

Local precognition agents

Wherever possible, local agents should be used to avoid significant travel costs.  Otherwise, you will need to justify the fees, or outlays incurred.

Telephone precognition

Wherever possible, an opportunity should be given to the witness to give a statement over the phone, especially in cases where the witness is giving formal evidence or speaking to straightforward matters.

It is appreciated that some witnesses may be reluctant to give information over the phone. To avoid this, you can send a letter to the witness prior to the call advising of the purpose of the call.

Arranging precognitions

Wherever possible firm appointments should be made with witnesses prior to obtaining a statement.  Initially, you should send a letter to each of the witnesses advising them of your interest and your intention to obtain a statement. This will make your identity clear from the offset, reassuring them of your official capacity and allowing for the continuation of contact via telephone calls when providing a statement.

Abortive attendance

Claims are occasionally seen for significant costs arising from repeated abortive attendances.  This usually arises where an agent attends without a firm appointment or where the witness fails to keep a pre-arranged appointment.  It is important that the account makes clear what has happened.

Initial attendance

If your agent attends at a confirmed appointment, and the witness is not there, a card should be left noting their attendance and requesting them to contact the agent. The agent is entitled to be paid for this visit. The account should confirm if a card had been left in these terms.

An agent is also entitled to payment for any attempted visits to a witness where they have failed to respond to requests for an appointment. They should again leave a card if they fail to meet with the witness.

Second attendance

In the event that the witness does not contact the agent, a further letter or phone call may be in order.  Any response should be noted in the account. It is imperative that it is clear whether a firm appointment has been made.

The agent should not incur further expense in carrying out speculative, abortive visits, on the off chance that the witness may be there. With the exception being, a brief time charge if the agent is in the area on other business and calls on the witness.

Where it is clear that a further appointment was made and the precognition agent attended in good faith, a reasonable charge will be payable.

Subsequent attendances

Some witnesses are reluctant to provide a statement.  It is important for the agent to recognise witnesses who are simply not prepared to give a statement.

In exceptional circumstances, further abortive visits may be considered having regard to the individual circumstances of the case.

Non-reporter witness precognition

You may require to take a precognition from individuals whose names have been provided by your client and who are likely to support his case. In such cases, if appropriate your client can be useful in “chasing up” such individuals and you should ask for their assistance making contact before setting up any potential abortive visits.

A different situation relates to a witness who may be hostile or reluctant. You will clearly wish to take a precognition from such an individual but it also has to be said that the individual will probably have no particular inclination to give such a precognition and charges for repeated visits against such a background would be subject to challenge.

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