Fees for consultations, accused and counsel meetings and locus visits or where counsel require to view Joint Investigative Interviews

The following paragraph prescribes a fee for consultations, locus visits and viewing joint Investigative interviews:

• Paragraph 5 of Part 1, Chapters 1 and 2 (High Court of Justiciary)
• Paragraph 4 of Part 3, Chapters 1 and 2 (Sheriff and Justice of the Peace Court)

Paragraph 5 (High Court) and 4 (Sheriff or Justice of the Peace Court) – consultations, accused and counsel meetings and locus visits, or where counsel require to view joint investigative interviews

Unless otherwise 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.”

• If the case is one indicted to the High Court, or Sheriff Court (indictment served on or after 25 September 2023) we must be satisfied that the consultation does not involve a formal meeting with the Crown before the first preliminary hearing or first diet. Any such claims must be disallowed as those meetings are covered by the preliminary hearing / first diet fee which is payable.
• Similarly, where counsel seeks payment for consultation(s) with the Crown after the first indictment has been deserted and in advance of the further preliminary hearing / first diet arising from a fresh indictment we must disallow those charges as those meetings are covered by the preliminary hearing fee which is payable.

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:

• the legal complexities of the litigation
• the factual complexity of the matter or the difficulty or novelty of the issues raised
• the volume of productions
• the duration of the proceedings
• where an interpreter is required
• the vulnerabilities of the client and, in particular, ability to understand the proceedings and the consequences of their actions.

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 Crown’ 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 you 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.

This does not preclude payment of reasonable consultations with co-accused 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.

Paragraph 16A(1) of the notes on the operation states:

“Subject to sub-paragraph (1A), a consultation fee is payable under paragraph 5 of Chapter 1 or 2 of Part 1 and paragraph 4 of Chapter 1 or 2 of Part 3 of the Table of Fees only once a day for a case, regardless of how many consultations in relation to that case are held that day. This applies where any of the following parties attend one or more than one consultation in one day-

1. the same counsel, solicitor and accused;
2. the same counsel and expert;
3. the same counsel and Crown counsel or Procurator Fiscal.

Where you are required to meet with the same parties more than once on the same day, only a single consultation fee is payable.

Where different parties are present and we are satisfied that each consultation was reasonable then we can allow more than one.

Paragraph 16A(4) of the notes on the operation states:

“Payment for all necessary communications and discussions between solicitor and counsel is included within the fees payable to counsel under this schedule, and any such communications or discussions are not chargeable as consultations except where there are exceptional circumstances that would justify a solicitor and counsel consultation.”

The majority of discussions with the solicitor will be included within the fees payable to counsel in the case.

Where you claim for a consultation with the solicitor we must be satisfied that there were exceptional circumstances before allowing payment of the consultation.

Although exceptional is not defined we consider that ‘exceptional circumstances’ is a high bar and it is essential that you have demonstrated that the circumstances leading to the consultation meet that test.

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 required to be resolved but the client was unable or unwilling to engage with agent and counsel.

Paragraph 16A(1A) of the notes on the operation states:

“No more than two consultations may be claimed in relation to consultations attended by the parties specified in sub-paragraph (1)(c) on or after the date of the preliminary hearing or first diet except on cause shown.”

As covered elsewhere consultations with Crown Counsel or the Procurator Fiscal are only chargeable following the first preliminary hearing or first diet (where the indictment is served on or after 25 September 2023).

While a fee is payable for consultations with Crown counsel or Procurator Fiscal after the first preliminary hearing or first diet we must be satisfied that this was a formal consultation which advances the cause.

Where more than two consultations are claimed in the case it is essential that you provide full details on all discussions held and how each consultation advances the case.

General communications in the case agreeing to adjourn a diet does not in itself justify a charge for a necessary consultation as these are routine discussions that will arise in the vast majority of cases and are deemed to be covered be the general fees payable in the case.

Paragraph 15B(aa) of the notes on the operation states:

“the fee for written questions in respect of the first or each subsequent vulnerable and child witness includes all necessary communications with Crown counsel or the Procurator Fiscal and is payable only once in any case, regardless of how many questions are drafted in that case.”

Where a fee is payable for:

• drafting written questions in respect of the first vulnerable witness or child witness
• drafting written questions in respect of the second and each subsequent, vulnerable witness or child witness

no fee is payable where the consultation solely relate to the written questions.

In the event that other issues are discussed and we are satisfied that a formal consultation, with regard to 16A(1) is payable a fee may be considered, on cause shown.

We sometimes encounter a situation where there are multiple grants of legal aid and where you 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 that are being discussed.

However, each case must always be considered on its own individual facts and in circumstances 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.

Paragraph 17(e) of the notes on the operation states:

“subject to paragraph (ee), the prescribed fees for a trial or any hearing shall include all work undertaken in the case that day.”

Where counsel claims for a consultation on the same day as a trial or any other hearing we will disallow any consultation fee which has been charged as you are only entitled to a hearing fee in the circumstances where paragraph 17(ee) applies.

For example, where counsel holds a consultation with the agent and client, and a consultation with the PF on the same day as an “adjourned trial diet (trial having commenced)”, we must disallow any consultations charged in addition to the hearing fee.

If you elect to charge for the consultations in lieu of the hearing we will disallow the consultations and offer payment at the relevant hearing rate.

The hearing fee takes precedence even where this could conceivably result in a lower fee being payable.

Paragraph 17(ee) of the notes on the operation is the exception where a consultation may be allowed on the same day as a hearing but only where all relevant criteria are met.

It states:

“a fee for a consultation with an expert, in addition to the prescribed fees for a trial or a hearing under paragraph (e), may be payable where counsel establishes that –

1. previous attempts had been made to consult with the expert which were unsuccessful;
2. the need to hold the consultation was urgent; and
3. the consultation took place on the same day as the trial or hearing before 0800 hours or after 1800 hours due to the limited availability of the expert.”

Where we are not satisfied that all criteria has been met we must disallow the consultation and invite you to confirm that all three tests have been met.

The following paragraph prescribes a fee for abortive consultations:

• Paragraph 5A of Part 1, Chapters 1 and 2 (High Court of Justiciary)
• Paragraph 4A of Part 3, Chapters 1 and 2 (Sheriff and Justice of the Peace Court)

5A (High Court) and 4A (Sheriff or Justice of the Peace Court)

Where a consultation which would have been payable under paragraph 5 of Part 1 or 4 of Part 2 does not proceed a fee may be payable for an abortive consultation.

Where we are satisfied that a consultation would have been payable, paragraph 16A(2) of the notes on the operation states:

“A fee for an abortive consultation is payable under paragraph 5A of Chapter 1 or 2 of Part 1 and paragraph 4A of Chapter 1 or 2 of Part 3 of the Table of Fees where counsel attended for a consultation but the consultation did not proceed due to no fault of counsel.”

Where a claim is made for an abortive consultation we must be satisfied you were not responsible for the consultation not proceeding.

For example, a fee for an abortive consultation may be reasonable where you travel to the agent’s office or a prison (or are en-route having commenced the journey at a reasonable time) to hold a consultation with the client and you are informed that it cannot proceed due to unforeseen circumstances.

Similarly, where the consultation is to be held remotely and at, or after, the time scheduled circumstances arise that mean the consultation cannot proceed a fee for an abortive consultation may be allowed on cause shown.

Where this is as a result of technical difficulties we must be satisfied that reasonable efforts were made to resolve those issues before the decision was made to abort the consultation.

Where we are not provided with a reason for the consultation being aborted we will disallow the aborted consultation and invite you to provide further information in support of the claim.

Multiple abortive consultations

Where there are multiple abortive visits with the client we must be satisfied that the agents or you undertook reasonable steps to ensure that the client would co-operate prior to re-attending.

Abortive consultations on the same day as a hearing not ordinarily chargeable

Where an abortive consultation features on the same day as a trial or any hearing we must disallow the aborted consultation on the same day as you are only entitled to a hearing fee unless paragraph 17(ee) applies (see guidance on consultations).

Where you claim for a consultation with the solicitor, in place of a consultation with the client and solicitor, due to the client not attending a pre-arranged consultation, we will normally treat this as an aborted consultation with the client as we do not consider those types of situation to be an ‘exceptional circumstance’ that would allow for payment of a fee for a consultation with the instructing solicitor.

Unless otherwise precluded from payment by reference to the notes on the operation a fee may be payable where it is necessary for counsel to view any joint investigative interviews.

This is a standard fee that is payable regardless of the number of JII’s viewed on the day.

Paragraph 16A(3) of the notes on the operation states:

“Viewing productions at any location forms part of case preparation and may not in

any circumstances be charged as a consultation or consultation work.”

Where you attend, for example, at a police station to view Crown labels this requires to be assessed as part of case preparation.

However, if you can justify that it was necessary to consult with the agent (subject to paragraph 16A(4) of the notes on the operation) or other parties during or after the viewing of the labels then a consultation may be considered as reasonable depending on the circumstances.

Where a claim is made for a locus visit we must be satisfied that the attendance was necessary.

Where we are not satisfied that a locus visit was reasonable we must disallow the attendance and invite you to provide further information in support of the claim.

For example, a fee note which simply states ‘Locus Visit’ may require further information to allow us to fully consider the claim having regard to the nature of the offences.

Reasons which may be persuasive would be where you are required to observe the line of sight that witnesses would have had where the client is disputing the witnesses evidence, or where you determine it is necessary to travel the route and the timing of the journey is key to the defence position.

It should be very rare that you are required to attend the same locus on more than one occasion and where more than one claim is made we will always seek further information in support of any such charges where it is not clear why a further attendance was necessary.

Where there are multiple loci we may allow a separate fee for additional locus visits where that is reasonable.

For example, two separate charges involving offences in two different towns may reasonably attract two fees.

However, where the two locations are in close proximity to one another we will allow one charge as reasonable.