Employment and definition of counsel

Counsel in the Court of Session, High Court or Sheriff Court in relation to First Instance Proceedings

Although the employment of counsel is automatic we do not expect counsel to be instructed in a sheriff court case.

We would also expect junior counsel to be instructed in the Court of Session or High Court where you are undertaking work that would be the equivalent of work to be done by a junior counsel.

The employment of senior counsel, or of more than one junior counsel, would be considered to be highly unusual and we will robustly challenge any such charges in the absence of detailed supporting information clarifying why it was appropriate in the particular circumstances of the case.

Where you are instructed in the Court of Session or High Court both advocates and solicitor advocates can be paid as counsel.

If you are a solicitor advocate it is important that you are aware that there is no provision to instruct a solicitor advocate in any proceedings in the sheriff court.

Counsel in the Court of Session, High Court or Sheriff Appeal Court in relation to appellate proceedings

Solicitors must obtain our prior approval for the employment of counsel.

This applies to the employment of:

• any counsel, including more than one counsel, in the Sheriff Appeal Court
• senior counsel, or of more than one junior counsel, in the Court of Session or High Court.

In the Sheriff Appeal Court, a solicitor advocate can be paid as counsel but only where we have authorised the employment of counsel.

Scope for retrospective approval

An application can be made for retrospective approval for the employment of counsel where that employment or work would have been approved had it been applied for timeously and there was a special reason why prior approval was not applied for.

You should refer to the Applications guidance for more information.

For the purposes of the fees regulations and this guidance a reference to “counsel” includes a “solicitor-advocate” subject to the following:

Regulation 2(1) of the Legal Aid in Contempt of Court Proceedings (Scotland) (Fees) Regulations 1992 provides the following definitions:

“counsel” includes a solicitor-advocate

“junior counsel” includes a junior solicitor-advocate

“right of audience” means, in relation to a solicitor, a right of audience in the Court of Session and the Supreme Court which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980;

Section 25A of the 1980 Act, clarifies that it applies to Rights of audience in the Court of Session, the Supreme Court, the Judicial Committee of the Privy Council and the High Court of Justiciary.

“senior counsel” includes a senior solicitor-advocate, except in paragraph (2) below;

“solicitor-advocate” means a solicitor, whether instructed by another solicitor or not, when and only when he is exercising his right of audience or acting in connection with the exercise of such a right and “junior solicitor-advocate” and “senior solicitor-advocate” shall be construed in accordance with paragraph (2) below;

and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.

(2)   For the purposes of these Regulations, a solicitor-advocate shall be—

(a)   a senior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a senior counsel in a case where the Board has authorised the employment of senior counsel under regulation 7(1)(a) or (2) below;

(b)   a junior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a junior counsel, whether or not the Board has authorised the employment of senior counsel in the case.

Although Regulation 7 of The Legal Aid in Contempt of Court Proceedings (Scotland) Regulations 1992, only requires the prior approval of counsel in appellate proceedings that must be read in conjunction with regulation 2 of those regulation and the equivalent regulation in the Contempt of Court Fees Regulations that we will only make payment of counsels fees where you have undertaken work that would normally require to have been undertaken by counsel.

Solicitor Advocates

Where a solicitor-advocate is instructed in the Sheriff Court we cannot make payment as counsel.

Where a solicitor-advocate is acting in the Court of Session, High Court or Sheriff Appeal Court we can make payment as counsel where, and if appropriate, the necessary prior approval has been authorised.