Guidance in relation to the preparation and assessment of Contempt of Court Counsel Fees

This guidance applies to counsel’s fees in relation to contempt of court proceedings where legal aid is made available under section 30 of the Legal Aid (Scotland) Act 1986, where the fees must be assessed in accordance with:

• The Legal Aid in Contempt of Court Proceedings (Scotland) (Fees) Regulations 1992:

Where regulation 7(1) applies the fees must be calculated in accordance with:

• Schedule 2 Tables of Fees

Regulation 7 states that:

Fees and outlays allowable to counsel

7.—(1)   Counsel shall be allowed such fees as appear to the auditor to represent reasonable remuneration, calculated in accordance with Schedule 2, for work actually and reasonably done, due regard being had to economy.

(2)   Where work done by counsel constitutes a supply of services in respect of which value added tax is chargeable, there may be added to the amount of fees allowable to counsel an amount equal to the amount of value added tax chargeable thereon.

(3)   Where, in terms of section 30(2) of the Act, representation is by counsel alone, he shall be allowed such outlays actually and reasonably incurred by witnesses called on behalf of the person held to be in contempt of court.

Although counsel can act alone our experience is that the court will rarely, if ever, make legal aid available on that basis. The court will normally make legal aid available to a solicitor who is within the precincts of the court at the time when the order is made who then, in turn, may instruct counsel who is similarly available where this is deemed necessary in the particular circumstances of the case.

Schedule 2 sets out the provisions and criteria for calculating the fees which may be payable.

You must have regard to these provisions when preparing your claim.

1.—Subject to the following provisions of this Schedule, fees shall be calculated in accordance with the Table of Fees in this Schedule.

2.—Where the Tables of Fees in this Schedule does not prescribe a fee for any item of work the auditor shall allow such fee as appears to him appropriate to provide reasonable remuneration for work with regard to all the circumstances, including the general levels of fees in the said Table of Fees.

Where a claim is being made under paragraph 2, you should provide a brief narrative in support of any claim clarifying the circumstances in which your fee has been calculated and the regard to the general level of fees provided for a prescribed fee, where appropriate, for work similar in nature.

3.—The auditor shall have power to increase any fee set out in the Table of Fees in this Schedule where he is satisfied that, because of the particular complexity or difficulty of the work or any other particular circumstances, such an increase is necessary to provide reasonable remuneration for the work.

Where an increased fee is being sought you should clarify how you have calculated the fee with reference to the complexity, difficulty or any other circumstances.

4.—The auditor shall have power to reduce any fee set out in the Table of Fees in this Schedule where he is satisfied that, because of any particular circumstances, a reduced fee is sufficient to provide reasonable remuneration for the work.

Where we reduce a fee from the prescribed fee that is provided for in the table of fees for any item of work we will provide you with clarification as to the circumstances why we have deemed that necessary.

Although Schedule 2 provides that the auditor, as opposed to SLAB, has the power to determine a reasonable fee, in practice we can and do seek to negotiate and reach agreement with counsel on what amounts to reasonable remuneration.

This practice was approved (albeit in the context of criminal legal aid) by Lord Coulsfield in HM Advocate v Birrell 1994 SLT 480 at p 483J between I and L:

“… counsel really agreed that, although the regulations and the Schedule are expressed by reference to the powers of the auditor, and the auditor must decide what fee is appropriate when a dispute arises, it must be taken to be implied that the board are entitled to negotiate and pay reasonable remuneration for items of work not specifically listed in the table of fees… I see no reason to doubt that the board are entitled to pay reasonable remuneration for work done, where there is no relevant item in the table, without requiring the intervention of the auditor.”

The Tables of Fees covers most, but not all, aspects of practice ordinarily associated with contempt of court first instance and appeal proceedings and applies prescribed rates that are payable for each of those work activities.

The purpose of this guidance is to provide you with sufficient information and advice to enable you to prepare an account in the proper form, and provide you with a better understanding as to the basis on which we will assess your account, including the application of discretion, where appropriate.

It is intended mainly for Counsel, and where we use the term “you”, this means the counsel who has been instructed under a grant of contempt of court legal aid.

Our aim is to clearly communicate with you about our decision-making, thereby improving our accountability for our policies and decision-making.

The guidance provides information as to the level of information that you should provide in support of your charges, what we do in assessing an account, and why we do it, making reference to the statutory and regulatory framework and other authority, explaining its application and our interpretation of it.

The role of an assessment officer is objectively to determine, on such information as is available, what sums are payable from the Fund on a proper application of the standard of taxation, itself discussed in some detail in this guidance, as the basis of our assessment is crucial to an understanding of our approach.

We have been performing this function for many years and have developed particular expertise through our knowledge of the Regulations, its day to day application and attendance at taxations before the Auditor.

We are the only body in Scotland regularly called upon to assess an account drawn on an agent and client third party (or Fund) paying basis.

You may disagree with some of our decisions as to what is reasonable in the context of an individual account, in the event that the account is not paid as claimed.

If so, and failing resolution at the negotiation stage, you are entitled to lodge an account with the auditor for taxation.

What is stated in the following guidance is what we, as the third party paying are generally prepared to allow, on the application of the Standard of Taxation prescribed by Parliament.