Civil legal aid accounts: progress fees for work done before 10 February 2007

The fee prescribed by paragraph 2(a)(i) [of Chapter 2 of Schedule 6 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989] covers all work from the lodging of defences until the allowance of a proof, debate or other hearing fixed for the purpose of settlement, including any adjustments and attendance at the Options or a Continued Options Hearing. (19 units)

The fee prescribed in paragraph 2(a)(ii) applies to cases where a settlement is reached prior to a proof or debate being allowed. It is designed to cover all work involved in reaching a settlement (including negotiations, discussion, voluntary disclosure and all meetings and correspondence) in a situation where this involves your “active participation”.

The fee prescribed in paragraph 2(a)(iii) covers scenarios where, prior to the allowance of a proof, debate or hearing fixed for the purpose of settlement, an outcome or disposal is reached without there being a formal negotiated settlement. The level of fee payable is dependent on the level of work undertaken. It recognises that it is possible to achieve an interim outcome for your client, either through interim orders or through continued Child Welfare Hearings, as a result of which your client is often “content” with such an order and fails to provide further instructions.

These are alternative fees; only one fee is chargeable in any case.

The progress fee prescribed by paragraph 2(a)(ii) is only chargeable in the circumstances set out in Rule 7. You must certify that one or both of the following situations apply:

  • 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 you, your client client or the opponent taking place after the conclusion of the work covered by the Instruction Fee.

The purpose of this fee is to recognise a substantial piece of work that has resulted in early settlement of the proceedings.

The factors that we (or the Auditor) have to take into account are:

  • Lengthy meeting or series of meetings
  • Correspondence or other communication between the parties

Which justifies that, but for this significant work, the case would have proceeded further at potential cost to the Fund or the parties.

This fee is not chargeable as a matter of course on settlement of an action. It is not chargeable, for example, for a settlement in circumstances where you have simply received instructions from your 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 a settlement without significant input from the solicitor lodging the claim.

This work has to be clearly documented on the file for our examination, so you can vouch for such with evidence of meetings and correspondence.

The progress fee under paragraph 2(a)(iii), similar to the previous settlement arrangement, allows you to claim a fee in the following circumstances:

  • No settlement is achieved but an outcome or disposal is reached and you can demonstrate sustained negotiations between you, your client and the opponent
  • We are satisfied that all the additional work you carried out was reasonable and necessary in all the circumstances of the case
  • Work is clearly documented on the file and we can examine it if necessary

The proviso remains that this fee is not chargeable as a matter of course on the disposal of an action

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