https://www.slab.org.uk/guidance/consultations/
https://www.slab.org.uk/guidance/consultations/
The following paragraph prescribes a fee for consultations:
Unless specifically precluded from payment by reference to the notes on the operation a fee may be payable where a consultation is held.
Paragraph 22(a) of the notes on the operation defines a consultation for the purposes of the fees regulations.
It states:
“’consultation’ means a formal meeting, including meeting by means of a conference call, with counsel on the instructions of the solicitor concerning a significant issue which advances the cause taking place usually, but not always, in the presence of the accused or an expert witness, including formal meetings with Crown Counsel taking place following the first preliminary hearing or first diet”.
The above definition refers to first preliminary hearing or first diet which will not arise in appeals but otherwise the definition can equally be applied to consultations in any appeal proceedings.
Paragraph 3(d) of the notes on the operation states:
“except on cause shown, fees for only two consultations in the case shall be allowed”.
This does not mean that only two consultations are chargeable.
The number and duration of consultations that are required in a case can vary significantly depending on the circumstances.
There are a number of factors that can affect the frequency or duration of meetings including:-
This is not intended to be an exhaustive list.
Our role exercising our own skill, knowledge and experience is to assess whether the number of consultations claimed was reasonable, for the type of case that you are assessing.
The decision is a matter of balanced judgement rather than arithmetical calculation.
In order that we can reach an informed view on the number of consultations the narrative must contain brief details as to the instructions taken, the advice given and how the case was progressed sufficient to justify the fee that has been claimed.
This does not mean that we expect, nor require, every word of the advice given or every detail on the law and procedure to be adopted – often advice on a particular procedure will be relatively standard – but we should expect to see some reflection in the narrative of the purpose of the consultation with particular reference to the personal circumstances of the client and the advice given on the case.
The greater the number of consultations claimed, the more detail should be provided.
Charges for a ‘consultation with client’ or ‘consultation with agent’ are, in the absence of any additional detail, unhelpful and are unlikely to provide any insight as to the information that has been imparted or received and will almost certainly result in us having to disallow the charge.
In the absence of supporting detail which justifies the charge we will normally restrict consultations to a number that we consider to be reasonable based on the information available and invite you to provide more information in support of the charge which has been made.
We will not pay for a consultation where it is apparent that a meeting was not necessary to advance the case.
Paragraph 3(h) of the notes on the operation states:
“correspondence, telephone calls, and meetings between counsel acting for the same assisted person are not allowable as separate items and shall be subsumed within the fees set out for the conduct of a hearing.”
Where we have granted the prior approval for multiple counsel to act we must disallow any consultations between counsel acting for the same assisted person.
The same rule does not preclude payment of reasonable consultations with co-appellant counsel who are acting for different assisted persons.
We can allow any such charges where we are satisfied those were reasonable for the proper conduct of the case.
Where there was been a change of counsel we must disallow any consultation with the outgoing counsel who has been acting for the same assisted person in the case.
Consultations lasting a full day cannot be split into more than one consultation and are only chargeable as a single consultation.
In this regard we would refer to the Auditor of the Court of Session decision in HMA v MW.
Where you are required to meet with the same parties more than once on the same day, we must allow one consultation only.
Where different parties are present and we are satisfied that each consultation was reasonable then we can allow more than one fee, where appropriate.
Consultations will take place usually, but not always, in the presence of the accused. Where you claim for a consultation with the solicitor alone in a case we must be satisfied that the consultation concerned a significant issue which advances the cause before allowing payment.
This may be either due to the nature of the issues to be discussed, the timing of the consultation, or other reasons that may be provided on cause shown.
For example, where you can demonstrate that substantive matters require to be resolved but the client was unable or unwilling to engage with agent and counsel.
A consultation with the agent which arises due to a lack of instructions will be challenged as the agents should always provide you with sufficient instructions at the outset of the case.
We may encounter a situation where there are multiple grants of legal aid and where you elect to charge a separate consultation fee in each case.
You must always conduct cases with due regard being had to economy.
In circumstances where the legal issues are predominantly common to all cases and the issues that arise are identical or very similar in nature and mindful that a “consultation” is a formal meeting that will have a beginning and an end after all matters have been discussed we would ordinarily expect that a single consultation fee is claimed to cover all matters.
However, each case must always be considered on its own individual facts and circumstances and where multiple charges are claimed it is essential that information is provided in support of any such claims in order that we can reach an informed view as to whether more than one claim would be justified in the particular circumstances of those cases.
As stated above a fee for a consultation can only be paid where it is held and where we are satisfied that the meeting involves a significant issue necessary to advance the cause.
In the absence of a prescribed fee for an aborted consultation, where you attend for a consultation but the consultation does not proceed due to no fault of counsel we will allow a reasonable fee.
Please refer to Legal Aid Guidance section entitled ‘Assessed Fees where there is no Prescribed Fee’.