https://www.slab.org.uk/guidance/fees-for-miscellaneous-hearings/
The following paragraphs prescribe fees for a range of other types of hearing:
Paragraph 3(e) of the notes on the operation states:
“except on cause shown (and subject to sub-paragraphs (ea) and (eb)), fees for senior counsel or, as the case may be, for both senior and junior counsel or for more than one junior counsel shall not be payable for attendance at hearings which do not require the attendance of senior or, as the case may be, both senior and junior counsel or more than one junior counsel.”
Where we are not satisfied that two counsel were necessary at a particular hearing we will allow the attendance of one counsel only and invite the second counsel to provide further information in support of their claim.
Hearings where we would ordinarily consider one counsel to be sufficient include first diet hearings, procedural diets, unopposed hearings, motions to adjourn, bail appeals or at any diet where there is no substantial debate anticipated.
This is not intended to be an exhaustive list and we will consider each attendance on its own merits having regard to any applications for prior approval that have been obtained which may specifically allow for the attendance of more than one counsel.
Where a hearing addresses more than one miscellaneous issue we may allow the higher fee as reasonable.
For example, where a hearing deals with both an application by the Crown for an extension of time and a motion to adjourn we may allow the higher fee for the “application by the Crown for an extension of time” but not both standing the terms of paragraph 17(e) of the notes on the operation which state:
“subject to paragraph (ee), the prescribed fees for a trial or any hearing shall include all work undertaken in the case that day.”
Paragraph 17(d) of the notes on the operation states:
“the fees allowed under Part III shall be no more than four fifths of the fees prescribed in Part I of the Table of Fees in this Schedule, and except on cause shown, fees for counsel in the Sheriff Court shall not be allowable for attendance at hearings which are routine or procedural only or which do not materially advance the case.”
For assessment purposes the prescribed fee must always take priority over the four fifths rule.
Where you specify the nature of the hearing and we are satisfied that it is not otherwise prescribed we must allow this fee.
For example, ground rules hearing in the High Court or bail review hearings (under Section 30 of 31 of the Criminal Procedure (Scotland) Act 1995 in the Sheriff Appeal Court are not prescribed elsewhere and as such must be paid the “Fee for a day in court for miscellaneous hearings other than those for which a fee is prescribed”.
Where you simply claim a miscellaneous hearing this would not ordinarily be sufficient information to enable us to make a judgment and we would invite you to provide further information in support of the claim.
In the highly unlikely event you require to attend a hearing of this nature, and have obtained the necessary prior approval to do so, we will pay this fee.
This is a quite different diet to a preliminary hearing under Section 72 of Criminal Procedure (Scotland) Act 1995, where the appropriate fee under paragraph 1B is payable.
Where it is a distinct diet we will pay this prescribed fee.
You should note that where the Section 275 application is considered at a continued/adjourned preliminary hearing the appropriate preliminary hearing fee under paragraph 1B is payable.
Where it is a distinct diet we will allow this prescribed fee.
You should note that where a specification of documents is considered at a continued/adjourned preliminary hearing the appropriate preliminary hearing fee under 1B is payable.
Where it is a distinct diet we will allow this prescribed fee.
You should note that where a devolution or compatibility minute is considered at a continued/adjourned preliminary hearing the appropriate preliminary hearing fee under 1B is payable.
Where it is a distinct diet we will allow this prescribed fee.
You should note that where an application by the Crown for an extension of time is considered at a continued/adjourned preliminary hearing the appropriate preliminary hearing fee under 1B is payable.
Where it is a distinct diet we will allow this prescribed fee.
Where an application by the Crown for an extension of time is addressed on the first day of a trial sitting before the jury is balloted or empanelled we will allow this fee.
A hearing under S72 of the 1995 Act will ordinarily be payable under paragraph 1B (preliminary hearing) in the High Court. If a claim is made you must clarify the nature of the hearing.
Where you attend a hearing set down to address a motion to adjourn only we will allow this fee.
Paragraph 22(a) of the notes on the operation states:
““child witness” has the meaning given in section 271(5) of the 1995 Act” and
““vulnerable witness” has the meaning given in section 271(1) of the 1995 Act;”
Where an application for special measures is considered at a continued/adjourned preliminary hearing the appropriate preliminary hearing fee under paragraph 1B is payable.
Where you attend a distinct hearing on applications under S271 to S271M (Special measures for child witnesses and other vulnerable witnesses) we will allow this fee.
Where following a conviction the crown raise confiscation proceedings against an assisted person these are chargeable under the substantive grant of legal aid.
Where you attend a hearing where substantial evidence is led or where full settlement is agreed the fee is payable with reference to the category which applied to the substantive first instance proceedings and we will allow the relevant full rate for trial.
Although payable at the full rate for a trial this fee does not affect the threshold limits in relation to preparation where a trial, or equivalent trial rate, ordinarily increases the threshold limits of documentation before any preparation fee is payable in the case.
The threshold limits in paragraph 15(c) may apply if no other trial or equivalent trial fee has been claimed in the case.
Where following a conviction the Crown raise confiscation proceedings against an assisted person these are chargeable under the substantive grant of legal aid.
Where you attend a hearing where there is no evidence led or full settlement agreed (sometimes referred to as a notional diet) we will allow this fee.
Where you confirm that mitigation is led we will allow the fee unless we have information which suggests otherwise.
Where you do not confirm that mitigation was led, or we have information to suggest mitigation was not led, we will reduce the claim to the “deferred sentence where no mitigation is led” fee and invite you to confirm what mitigation has been led.
In the main we consider mitigation to be the presentation of factors that would have had a bearing on the length or type of sentence passed i.e. factors or circumstances that judges can consider when deciding a sentence, for example, first offender, guilty plea, assisting the prosecutor, personal circumstances, effect on family/job and opportunities for rehabilitation.
However, in the event that mitigating arguments are presented at deferred diets in advance of the passing of sentence and which are concerned with the client being remanded in advance of the final disposal, such hearings can be considered as equivalent to a deferred sentence with mitigation.
Where you attend any deferred sentence where there is no mitigation led we will allow this fee.
In assessing any claim for a deferred sentence you must also have regard to the terms of paragraph 3(eb)(i) of the notes on the operation states:
“a fee, under Part 1 or 3 of the Table of Fees, is to be allowed to one counsel only in respect of a diet of deferred sentence, except where there is in contemplation the imposition of any of the following:
or where there is a hearing of evidence in mitigation”
Where two counsel attend a diet of this nature we must be satisfied that this criteria has been met.
Where we are not satisfied we will only allow senior alone or junior alone rates as the case may be and invite you to clarify the circumstances which would justify the attendance of two counsel.
Paragraph 17(c) of the notes on the operation states:
“where counsel conducts a number of deferred sentences on the same day the prescribed fee shall be reduced by half for a second deferred sentence, and by a further half for a third and any subsequent deferred sentence.”
Where we are aware that you have attended more than one deferred sentence on the same day we will allow the first claim at the full rate, the second claim must be allowed at the half rate and any subsequent claims must be allowed at the equivalent of one quarter of the full rate.
Section 195 of the Criminal Procedure (Scotland) Act 1995 allows the sheriff, in proceedings on indictment in the Sheriff Court, to remit the case to the High Court where they hold that any competent sentence which can be imposed is inadequate or where it appears that the risk criteria under S210E of the Act have been met so that the question of sentence is one appropriate for the High Court.
Where you attend a remit for sentence hearing the fee must be claimed at this rate.
Where such a remit is made the case should be treated as a High Court matter only from the point that the sheriff makes the remit with any associated work such as consultations being considered under Part 1, Chapter 1 and 2. It does not elevate the entire proceedings to High Court.
Where you attend a hearing on a drug treatment and testing order review, and we are satisfied that the work is covered under the grant of legal aid rather than under a distinct grant of ABWOR, and no mitigation was led and where the order has not been revoked we will allow this fee.
Where you attend a hearing on a drug treatment and testing order review, and we are satisfied that the work is covered under the grant of legal aid rather than under a distinct grant of ABWOR, and that mitigation is led and the order has been revoked we will allow this fee.
Where you do not confirm that mitigation was led and the order revoked, but has nevertheless charged this fee we will reduce the claim to the “drug treatment and testing order review” fee and invite you to confirm what, if any, mitigation was led and confirm the order was revoked.
When is DTTO work covered by ABWOR?
Regulation 3 (l) and (m) of the Criminal Legal Aid (Scotland) (Prescribed Proceedings) Regulations 1997, makes clear that Criminal legal aid shall not be available in connection with DTTO proceedings under s234E, 234F or 234G of the 1995 Act and where a claim is made and we are in any doubt we will invite you to clarify on what basis this work is covered by the grant of legal aid.
This fee can only apply where the trial diet is adjourned prior to the empaneling of the jury.
This is a fee that is very rarely charged as diets of this nature tend to involve some other form of procedure which will allow the miscellaneous fee to be charged.
For example, there will frequently be an application by the Crown for an extension of time on the first day of trial prior to the jury being balloted or empaneled and in such cases we will allow the relevant prescribed fee for a “hearing on an application by the Crown for an extension of time”.
Paragraph 17(bb) of the notes on the operation of schedule 2 states:
“where a trial has commenced but has not proceeded on a particular day due to the absence of a juror, the trial judge or any other party through illness or unavailability the fee payable is–
This fee can only apply where the trial diet is adjourned after the empanelling of the jury.
Where the trial, having already commenced, has not proceeded on a particular day due to the absence of a juror, the trial judge or any other party through illness or unavailability we will allow this fee.
Where any evidence is led or any legal argument takes place on such a day the full rate for a trial must be allowed.
Unless we have information to the contrary we will assume that you are aware of the position when charging the full trial rate and that the trial involved the leading of evidence or legal argument.
Where we have the solicitor’s account, or other fees submitted by counsel acting for co-accused, we must ensure that all parties have charged consistently.
It is not uncommon for different counsel to provide a level of detail that may result in us having to make enquiry in support of the full trial fee.
Paragraph 17(ba) of the notes on the operation states:
“where at a trial diet there is more than one accused and counsel represents an accused who pled guilty at an earlier diet, the fee under paragraph 3 of Chapter 1 or 2 of Part 1 or under paragraph 2 of Chapter 1 or 2 of Part 3 is not payable, but a fee may be payable on cause shown under paragraph 4(pa) of Chapter 1 or 2 of Part 1 or paragraph 3(oa) of Chapter 1 or 2 of Part 3.”
Where we are aware that counsel is attending a trial diet proceeding against co-accused after their client has plead guilty we must ensure that the fee for a “trial diet where there is more than one accused and counsel represents an accused who pled guilty at an earlier diet” is charged.
For example, it may still be necessary for you to attend the trial diet to ensure that the evidence led does not impact on your client’s position, may help inform the mitigation to be given at the sentencing diet, or may be required where you have been ordained to appear at these diets by the court.
Where the claim is silent on the reason for your attendance we will disallow the entry and invite counsel to provide further information in support of the claim.
Unless we have information to the contrary where this fee is claimed we will assume that there was evidence adduced and allow the prescribed fee for trial depending on category of case and status of counsel.
Where no evidence is adduced on the date the fee you must claim the “fee for a day in court for miscellaneous hearings other than those for which a fee is prescribed” to reflect the work actually done.
Where the fee is payable at the full rate for a trial this means that the threshold limits in paragraph 15(d) of the notes on the operation must be applied when determining what, if any, preparation fee is payable in the case.
Paragraph 22(b) of the notes on the operation states:
“evidence is adduced” for the purposes of a commission on evidence or any other hearing, if one or more witnesses gives or starts to give evidence at that commission or hearing”.
Unless we have information to the contrary where this fee is claimed we will assume that there was evidence adduced and allow the prescribed fee for trial depending on category of case and status of counsel.
Where no evidence is adduced on the date you must claim the “fee for a day in court for miscellaneous hearings other than those for which a fee is prescribed” to reflect the work actually done.
Where the fee is payable at the full rate for a trial this means that the threshold limits in paragraph 15(d) of the notes on the operation must be applied when determining what, if any, preparation fee is payable in the case.
Unless we have information to the contrary where this fee is claimed we will assume that the examination of facts proceeded and allow the prescribed fee for trial depending on category of case and status of counsel.
Where the examination of facts does not proceed on the date you must claim the “fee for a day in court for miscellaneous hearings other than those for which a fee is prescribed” to reflect the work actually done.
Where the fee is payable at the full rate for a trial this means that the threshold limits in paragraph 15(d) of the notes on the operation must be applied when determining what, if any, preparation fee is payable in the case.
Unless we have information to the contrary where this fee is claimed we will assume that the “proof in mitigation” with evidence adduced proceeded and allow the prescribed fee for trial depending on category of case and status of counsel.
Where no evidence is adduced on the date you must claim the “fee for a day in court for miscellaneous hearings other than those for which a fee is prescribed” to reflect the work actually done.
Where the fee is payable at the full rate for a trial this means that the threshold limits in paragraph 15(d) of the notes on the operation must be applied when determining what, if any, preparation fee is payable in the case.
Unless we have information to the contrary where this fee is claimed we will assume that the evidence was taken and allow the prescribed fee for trial depending on category of case and status of counsel.
Where no evidence is adduced on the date you claim the fee for a “deferred sentence where mitigation is led” or “deferred sentence where no mitigation is led” to reflect the work actually done.
Where the fee is payable at the full rate for a trial this means that the threshold limits in paragraph 15(d) of the notes on the operation must be applied when determining what, if any, preparation fee is payable in the case.
Paragraph 17A of the notes on the operation states:
“Where counsel claims a fee in respect of the first diet under paragraph 3(t) of Chapter 1 or 2 of Part III of the Table of Fees, the fee shall only be payable in a case where the indictment was served prior to 25 September 2023 and where a plea of guilty is tendered at that hearing or where the case is brought to an end by the Crown’s acceptance of a plea of not guilty, withdrawal of the libel, desertion of the diet or by other means.”
Where we are satisfied that the indictment was served prior to 25 September 2023 we will pay this fee where we are satisfied that a plea of guilty was tendered at that hearing or that the case was brought to an end by the Crown’s acceptance of a plea of not guilty, withdrawal of the libel, desertion of the diet or by other means at the hearing.
Where it is not clear we will restrict the claim to the “fee for a day in court for miscellaneous hearings other than those for which a fee is prescribed” and invite you to clarify which of the criteria has been met that would justify the fee being allowed.
Where the fee is payable at the full rate for a trial this means that the threshold limits in paragraph 15(d) of the notes on the operation must be applied when determining what, if any, preparation fee is payable in the case.
In any other case the fees for first diets are payable under paragraph 1AA of Part 3, Chapters 1 and 2 and you must allow the fees on that basis.
Where the court have assigned a diet of debate to decide a point of law, unless we have information to the contrary, where this fee is claimed we will assume that the “diet of debate” proceeded and allow the prescribed fee for trial depending on category of case and status of counsel .
Where the debate is not held on the date we will restrict the claim to the “fee for a day in court for miscellaneous hearings other than those for which a fee is prescribed” to reflect the work actually done.
Where the fee is payable at the full rate for a trial this means that the threshold limits in paragraph 15(d) of the notes on the operation must be applied when determining what, if any, preparation fee is payable in the case.
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