Civil legal aid block fee accounts: progress fees

Progress fees are designed to cover the different ways in which defended civil ordinary cause proceedings will normally be progressed resulting in either the fixing of a proof, debate or other court hearing fixed for the purposes of settlement or the negotiated settlement or disposal of the case.

With effect from 25 September 2023, three new progress fees in paragraph 2A of the Table of Fees have been introduced to accommodate new rules and procedures that will be introduced in defended sheriff court family and civil partnership actions.
A fee under paragraph 2A, is payable where:

• work is carried out which follows the amended procedures introduced by the Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022, or

A fee under paragraph 2, is payable where:

• no work was carried out under that amended procedures.

A progress fee should be payable in the vast majority of cases where legal aid is granted.

Where no progress fee is claimed and we have evidence (for example, the case has proceeded to an Options Hearing or Full Case Management Hearing, an extra judicial settlement fee is claimed or frequent CWH and motions have been claimed in the account) which indicates a fee may be chargeable, we will draw this to your attention and invite you to clarify why no fee has been claimed.

We will explain why we think a fee may be appropriate in the particular circumstances of the case.

Only one fee under either paragraph 2(a) or 2A, is chargeable in any case.

Progress Fees under paragraph 2(a) – where no work is carried out under the procedures introduced by the Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022

After 25 September 2023, these progress fees mostly apply to non-family or civil partnership actions.

Only one progress fee is chargeable in any case.

The fee is payable in any case where the proceedings have reached the options hearing stage and the court allow a Proof, Debate or other court hearing fixed for the purpose of settlement.

It is helpful if the account clearly states the date of the options hearing and the nature of the hearing which has been fixed for the purposes of settlement. In the absence of this information and unless it is clear from other work which is being charged in the account we may require to ask for further information before we can pay the fee.

Only one progress fee is chargeable in any case.

The fee covers all additional work (for example, negotiation, discussion, voluntary disclosure and all meetings and correspondence) involving the active participation of agents and resulting, prior to the allowance of a Proof, Debate, or other court hearing fixed for the purpose of settlement, in the negotiated settlement of the action (except as specifically provided below).

This fee is only payable where it is unlikely that the action would have settled without your input and you can certify that settlement took place in consequence of one or both of the following circumstances:

• settlement was expressed within an extraneous Minute of Agreement or a Joint Minute (other than a Joint Minute for dismissal or decree simpliciter) encompassing an outcome materially different from the terms of any interim order of court in force immediately prior to the execution of that Joint Minute or Minute of Agreement
• settlement followed upon an exercise of sustained negotiation involving a significant level of discussion between solicitor, the client or the opponent (or their agent) taking place after the conclusion of the work payable under paragraph 1 and clearly documented on the file for perusal, if required, by us.

If we are unclear whether the criteria has been met we will ask you to justify the work that you have done to achieve settlement. Factors that we will take into account will include:

• a lengthy meeting or series of meetings; or
• correspondence; or
• other forms of communication

between the parties which, together, justify the conclusion that, but for this significant work, the case would have proceeded further at potential cost to the Fund or the parties.

Where necessary paragraph 7(b) of the Notes on the operation makes clear that we are entitled to request your file for perusal, if necessary, but we will only do that where matters cannot be resolved through dialogue as part of the normal process of negotiation.

Only one progress fee is chargeable in any case.

The fee covers all additional work (e.g. negotiation, discussion, voluntary disclosure and all meetings and correspondence) involving the active participation of agents where, prior to the allowance of a Proof or Debate, or other court hearing fixed for the purpose of settlement, an outcome or disposal is effected (subject to a maximum charge of 10 units) (except as specifically provided below).

The fee will be payable where:

• no settlement is achieved but an outcome or disposal is reached and the solicitor can demonstrate that an exercise of sustained negotiation involving a significant level of discussion between the solicitor, the client and, as the case may be, the opponent (or the opponent’s agent) took place;
• we are satisfied that all the additional work carried out by the solicitor was reasonable and necessary in all the circumstances of the case; and
• the work is clearly documented on the file and may be perused by us as required.

All three tests must be met before we can make payment.

The fee is not chargeable as a matter of course on settlement of an action.

For example, it will not be chargeable in circumstances where the solicitor has simply received instructions from the client not to proceed; or the opponent is prepared to concede (perhaps on civil legal aid being made available to the pursuer), or any other circumstances which lead to an outcome or disposal without significant input from the solicitor lodging the claim.

This work has to be clearly documented on the file for our examination, so we can be satisfied that an exercise of sustained negotiation involving a significant level of discussion between the solicitor, the client and, as the case may be, the opponent (or the opponent’s agent) took place.

We will always try and glean from the account, wherever possible, any indicators that there has been significant discussion but if in doubt we will ask you to justify the fee with reference to the following factors:

• a lengthy meeting or series of meetings; or
• correspondence; or
• other forms of communication

between the parties which, together, justify the conclusion that, but for this significant work, the case would have proceeded further at potential cost to the Fund or the parties.

Only one progress fee is chargeable in any case.

This fee covers all additional work (including adjustment, all work relating to the Pre-Hearing meeting, lodging joint minute and exchanging list of witnesses and attendance at Full Case Management Hearing) from the conclusion of the work in paragraph 1 until the allowance of a Proof or Debate or other court hearing fixed for the purpose of settlement (except as specifically provided below).

The fee is payable in any case where the proceedings have reached the Full Case Management Hearing stage and the court allow a Proof, Debate or other court hearing fixed for the purpose of settlement.

It is helpful if the account clearly states the date of the Full Case Management Hearing and the nature of the hearing which has been fixed for the purposes of settlement.

In the absence of this information and unless it is clear from other work which is being charged in the account we may require to ask for further information before we can pay the fee.

Only one progress fee is chargeable in any case.

This fee covers all additional work (for example, negotiation, discussion, voluntary disclosure and all meetings, correspondence, and all work relating to the Pre-Hearing meeting, lodging joint minute and exchanging list of witnesses, where appropriate) involving the active participation of agents and resulting, prior to the allowance of a Proof, Debate, or other court hearing fixed for the purpose of settlement, in the negotiated settlement of the action (except as specifically provided below).

This fee is only payable where it is unlikely that the action would have settled without your input and you can certify that settlement took place in consequence of one or both of the following circumstances:

• settlement was expressed within an extraneous Minute of Agreement or a Joint Minute (other than a Joint Minute for dismissal or decree simpliciter) encompassing an outcome materially different from the terms of any interim order of court in force immediately prior to the execution of that Joint Minute or Minute of Agreement
  • settlement followed upon an exercise of sustained negotiation involving a significant level of discussion between solicitor, the client or the opponent (or their agent) taking place after the conclusion of the work payable under paragraph 1 and clearly documented on the file for perusal, if required, by us.

If we are unclear whether the criteria has been met we will ask you to justify the work that you have done to achieve settlement.

Factors that we will take into account will include:

• a lengthy meeting or series of meetings; or
• correspondence; or
• other forms of communication

between the parties which, together, justify the conclusion that, but for this significant work, the case would have proceeded further at potential cost to the Fund or the parties.

Where necessary paragraph 7(d)(ii) of the Notes on the operation makes clear that we are entitled to request your file for perusal, if necessary, but we will only do that where matters cannot be resolved through dialogue as part of the normal process of negotiation.

Only one progress fee is chargeable in any case.

This fee covers all additional work (for example, negotiation, discussion, voluntary disclosure and all meetings, correspondence and all work relating to the Pre-Hearing meeting, lodging joint minute and exchanging list of witnesses, where appropriate) involving the active participation of agents where, prior to the allowance of a Proof or Debate, or other court hearing fixed for the purpose of settlement, an outcome or disposal is effected (subject to a maximum charge of 11 units) (except as specifically provided below).

The fee will be payable where:

• no settlement is achieved but an outcome or disposal is reached and the solicitor can demonstrate that an exercise of sustained negotiation involving a significant level of discussion between the solicitor, the client and, as the case may be, the opponent (or the opponent’s agent) took place
• we are satisfied that all the additional work carried out by the solicitor was reasonable and necessary in all the circumstances of the case; and
• the work is clearly documented on the file and may be perused by us as required.

All three tests must be met before we can make payment.

The fee is not chargeable as a matter of course on settlement of an action.

For example, it will not be chargeable in circumstances where the solicitor has simply received instructions from the client not to proceed; or the opponent is prepared to concede (perhaps on civil legal aid being made available to the pursuer), or any other circumstances which lead to an outcome or disposal without significant input from the solicitor lodging the claim.

This work has to be clearly documented on the file for our examination, so we can be satisfied that an exercise of sustained negotiation involving a significant level of discussion between the solicitor, the client and, as the case may be, the opponent (or the opponent’s agent) took place.

We will always try and gleam from the account, wherever possible, any indicators that there has been significant discussion but if in doubt we will ask you to justify the fee with reference to the following factors:

• a lengthy meeting or series of meetings; or
• correspondence; or
• other forms of communication

between the parties which, together, justify the conclusion that, but for this significant work, the case would have proceeded further at potential cost to the Fund or the parties.