Fees for written work

The following paragraphs prescribe fees for a number of items of written work that are, in the main, payable separately and in addition to other fees chargeable in the case.

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

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.”

You cannot claim for any prescribed written work where it is claimed on the same day as a hearing.

1A(b) – Drafting a devolution or compatibility minute

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

“a fee is only payable for a second devolution or compatibility minute where counsel establishes there were exceptional circumstances in the case, and in any case fees for no more than two devolution or compatibility minutes are payable in any one case.”

Where there is more than one devolution or compatibility issue to be raised, a separate minute is not required of necessity for each separate issue and all efforts should be made, where possible, to cover all matters in a single minute.

This reflects our approach to taxation and was upheld by the Auditor of Glasgow Sheriff Court in 2014 in the case of HMA v FC.

Where more than one minute is claimed on or around the same date, and it is not clear why more than one was necessary, we will only allow a fee for one minute and invite you to clarify the exceptional circumstances which featured in the case and which necessitated a second minute.

1A(c) – Drafting a section 275 application under the 1995 Act

Where there are multiple complainers it may be necessary for counsel you to draft multiple applications.

Where more than one application is claimed on or around the same date, and it is not clear that they relate to different complainers, we will only allow one application and invite you to clarify the position

1A(d) – Drafting a specification of documents

Where there are multiple parties holding different material it may be necessary for you to draft multiple applications.

Where more than one application is claimed on or around the same date, and it is not clear that they relate to different material, we will only allow one application and invite you to clarify the position.

1A(e) – Drafting interrogatories

Although rare this fee is payable where you reasonably draft interrogatories.

1A(f) – Drafting a defence statement

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

“the fee for drafting defence statements is payable only once in any case, regardless of how many statements are drafted in that case.”

For example, a case may be deserted after the preliminary hearing is held and is then re-indicted resulting in you drafting a fresh defence statement for the re-raised preliminary hearing.

If one has already been charged no further claims after can be paid.

1A(g) – Drafting written questions in respect of the first vulnerable witness or child witness and

1A(h) – Drafting written questions in respect of the second, and each subsequent, vulnerable or child witness

Paragraph 22(a) of the notes on the operation states:

““vulnerable witness” has the meaning given in section 271(1) of the 1995 Act” and
““child witness” has the meaning given in section 271(5) of the 1995 Act.”

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 claim is made for drafting written questions only one fee per subsequent vulnerable and child witness is payable in that case.

If you require to draft supplementary questions and have already made a claim then no further fee after the first can be paid.

An enhanced fee is payable for the first vulnerable witness and a lower fee is payable for each subsequent vulnerable witness.

1A(i) – Opinion on sentence

This fee is payable at a standard rate depending on the status of counsel.

This fee should only ever be chargeable in cases where the client has been convicted.

1A(j) – Opinion in an appeal by way of Bill of Suspension or Stated Case

This fee is payable at a standard rate depending on the status of counsel.

While an opinion on a Bill of Suspension may arise at any time, the fee for an opinion by way of stated case should only ever be chargeable in cases where the client has been convicted on summary complaint.

1A(k) – Opinion in any other case

This fee is payable within a range of fees.

Paragraph 8 of the Notes on Operation states:

“Where counsel is seeking a higher fee within the range under paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 1, paragraph 2(a), (d), 3(a), (b), (e), 4(b), 6(d), (e), or 11 (written work) of Chapter 1 or 2 of Part 2, or paragraph 1A(k) (written work) of Chapter 1 or 2 of Part 3, he or she will need to justify this by reference to either or both of the following factors:—

1. the content rather than the length of the document; and
2. the amount of documentation necessarily referred to.”

Where a higher fee within the range is being claimed we must be satisfied that the fee is reasonable having regard to these factors before we can pay the fee claimed.
Where a claim is made under this paragraph you may either provide us with a copy of the document, or a supporting narrative justifying the claim made with reference to these factors.

Where we are not satisfied we will allow a reasonable fee within the range and ask you to provide further information in support of the claim.

1A(l) – Drafting written submissions where ordered by the court

This fee is payable at a standard rate depending on the status of counsel where written submissions have been ordered for any hearing prescribed under Part 1 or Part 3.

This fee should only ever be charged where the written submissions have been ordered by the court of first instance.

Where it is not clear from the fee note whether the court ordered the written submissions we will ask you to clarify the position.

Written work other than those prescribed under Paragraph 1A

With the exception of those items of written work prescribed under paragraph 1A, which prescribes documents that require to be lodged in court (and paragraph 6 which prescribes the fee for a necessary note), the general rule is that no fee is payable for any other written work done in the case (see Assessed Fees below).

Paragraph 3(i) of the notes on the operation states:

“all written work done (including work revising any document) is included within
the fees payable to counsel and, except for written work for which a fee is separately prescribed in the Table of Fees, no separate charges may be made.”

We cannot allow any written work where any other fees are payable to you in the case unless the written work is prescribed within the Table of fees.

For example, a ‘preliminary minute’ drafted and lodged in advance of a preliminary hearing would be included within the fees payable to any counsel instructed in the case.

Written work drafted and revised by the same counsel

Paragraph 3(i) also refers to ‘revising’ and where you draft a document for which there is a prescribed fee no further fee is chargeable for any subsequent revisal charge.

Written work drafted and revised by different counsel

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

“where written work, for which there is a prescribed fee, or a necessary note is drafted and revised, the fee payable for the written work or necessary note is, if there is more than one counsel, shared equally between counsel who made the revisals.”

Where different counsel draft the same item of written work where there is a prescribed fee. The prescribed fee requires to be shared equally.

Where we only become aware that this is an issue after the full fee has been paid to an earlier counsel we cannot allow any subsequent claim and we will inform you that the full fee has already been paid.

It is a matter for the respective counsel to resolve any issues in relation to payment.

For example, if senior and junior are both involved in the preparation of the defence statement we can only pay each counsel half of the prescribed fee.

Application to adjourn or alter a diet in terms of section 75A of the 1995 Act

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

“no fee is payable for the drafting of an application in respect of the adjournment or alteration of a diet in terms of section 75A of the 1995 Act”.

The purpose of this is to put beyond doubt that a fee is not payable for written work relating to a Section 75A application.