Fees payable for the taking of a precognitions in A&A cases

Precognition fees available: subsumption of the framing of precognition and time taken to make it

In connection with the initial meeting with the client, the Table of Fees for advice and assistance provides for an inclusive fee “for taking and drawing precognitions”.  This subsumes not only framing the precognition but the time charged for taking it.  There is no framing charge under advice and assistance.

The ABWOR Table of Fees has no equivalent omnibus fee, the charge being a combination of a time charge (under paragraph 1A) and a framing charge (under paragraph 1C).

When is a precognition properly chargeable?

You should attach a copy of the precognition, where it exceeds two pages, to the account when claiming for taking and drawing a precognition.

Two matters need to be addressed:

  • Firstly, the document must be a precognition, not just a file note.
  • Secondly, to be a reasonable charge, it must have been necessary to take a precognition.

These matters are dealt with in turn.

The definition of a precognition and matters excluded from proper charges

A precognition has been defined as:

Glossary of legal terms and Latin maxims.

  • A preliminary written statement of the evidence which a witness may be expected to give.  It is usually paraphrased after interview with the witness and prepared in the first person.  It is not signed, and is not binding.

Manual of the Law of Evidence in Scotland, W.J. Lewis [1925] page 172

  • A written statement of the matters which witnesses are expected to give as evidence on oath when in the witness box, and is as a guide generally essential for the proper leading of the evidence at the diet of enquiry.

I.D. MacPhail, Sheriff Court Practice, 2nd Edition, page 473

  • A written statement in intelligible form of the matters which a witness is prepared to give in evidence in the witness box.

J A Beatons, Green & Son, 1982.

  • A preliminary examination of a person who may be required to give evidence in a criminal trial or a civil proof.  The purpose of obtaining a precognition is to acknowledge in advance of the trial or proof of the evidence the witness will be able to give about facts which are likely to emerge as relevant in which it will require to be proved.  The likely evidence is set out in a document, also called a “precognition”.  Scots law terms and expressions,.

Although the definitions vary in emphasis, it is clear that a precognition is a statement taken to discover what evidence a witness will give in court or before a tribunal hearing.

We will only pay for the precognition or the part of the precognition relevant to the person’s own account of events, restricted to the salient facts.  Any information you add, not given by that person, will not be allowed – for example, the legal position, the consequences for your client or your client’s remedies.  The precognition should only contain matters based on the facts within the person’s own knowledge, which are likely to or could be used for giving evidence should the matter proceed to litigation.  We will only allow those precognitions, or parts of precognitions, where it is clear that the information in that person’s account of events has been used or would have been used in evidence at a court or tribunal hearing.

Matters we will abate – and which should not be framed – include

  • a lengthy narration or restatement of information on a form or an initiating document;
  • details of the client’s personal and financial circumstances;
  • entries reflecting discussions between the solicitor and the client, perhaps providing further information at a later meeting, which are more correctly considered as file notes covered by the time charge.
  • information on case law or comments which have clearly not been made by the client;
  • irrelevant or extraneous information.

Demonstrating a precognition was necessary: examples and matters excluded

You should only take a precognition where it is necessary – that is, when it is likely that the matter will proceed to litigation, not where it is simply a matter which is capable of proceeding to litigation. We will not pay for framing a precognition when it turns out to have been unnecessary.

For example, if a client seeks advice on interdict and you send a letter to resolve matters and no further action is required, you do not need to take a statement at the first meeting. If the client needs to apply for legal aid, you can take a statement then.  You will need recent information to apply for legal aid for interdict, and could not use a precognition of an old incident.  You do not, therefore, need to take a statement of each and every incident.

Taking a routine precognition from a client, containing little information which advances the case and sometimes simply reflecting instructions from the client on various matters which are more properly dealt with by a file note, is not chargeable.

On occasion you may need to include a brief note about the client’s financial circumstances where that information is relevant to a tribunal hearing and may be led in evidence.  However, you should not unnecessarily extend the financial information already provided in the advice and assistance form unless or until a hearing is fixed.

Even when it is necessary to frame a precognition, some precognitions contain far more detail than the evidence the client or witness will have to give in the witness box. We will not allow a charge for a precognition to the extent that it contains:

  • detailed information about the client’s financial circumstances, benefits and other extraneous matters; and/or
  • a verbatim account of a meeting.

You are paid a time charge for taking such detail and it remains on your file for further use.  It need not form part of a precognition for which a separate framing charge is payable in appropriate circumstances.

Where a precognition is unnecessary or excessively lengthy, we will either abate the charge or reduce the number of sheets.

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