Payment on transfer of agency


The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.2) Regulations 2023 came into force on 29 April 2023.
This Guidance item has been amended to reflect the new regulations.
For the regulations in force prior to 29 April 2023, please refer to the archive Guidance item.

Provision for change of agency in proceedings is made in regulation 17 of the criminal regulations and regulation 14A of the advice and assistance regulations. The latter, applying only to fixed payment ABWOR is an exception to the normal rule that A&A (and by extension detailed ABWOR) cannot be the subject of a transfer.

In a fixed payment regime the consequences of a transfer are important.

The next two sections deal with this issue.


Division of fees on transfer of agency

Regardless as to whether ABWOR or criminal legal aid is being provided, an equal part of the fixed payment for the case (whether under Schedule 1, 1A or 1B) is payable to each of the solicitors who acted for the assisted person in the proceedings.  This applies even where the case is transferred before it proceeds to trial beyond 30 minutes and the initial claim was made under Schedule 1A:  if the case does ultimately proceed to trial beyond 30 minutes, the case is chargeable under Schedule 1 and the normal rules apply.

The division is:

  • each of the solicitors who act for the assisted person in the proceedings is paid an equal part of the appropriate core fixed payment, and
  • the solicitor who carries out the work for which further fixed payments are due (“add-ons”), described in the other paragraphs of the relevant Schedule, is entitled to the amount payable under those paragraphs for such work.

This means that the core fixed payment (whether ABWOR or criminal legal aid) fee is divided equally between the solicitors representing the accused in these proceedings, but all the add-ons – for example, a bail appeal or third or subsequent deferred sentence – are chargeable by the solicitor who actually did the work.

It should be noted that the apportionment is “to each of the solicitors who act for the assisted person in the relevant proceedings” and not necessarily the number of times in a case that there has been a “transfer”.  So, for example, if solicitor A is the original solicitor acting and the case is transferred to solicitor B before being transferred back to solicitor A there are only two solicitors who have acted for the assisted person.

It has been suggested that in cases where legal assistance is transferred from the PDSO, the solicitor to whom it is transferred should be entitled to the total fixed payment, PDSO solicitors being salaried. Regulation 4.7 of the fixed payment regulations does not distinguish between the PDSO and any other solicitor and any non-PDSO solicitor is only entitled to the relevant share of the total claim based on the number of solicitors who have acted for the assisted person.

The provision of ABWOR or legal aid has still been at a cost to public funds.

Payment of outlays on transfer of agency

As with the fees for “add-ons”, where the case has been transferred we will pay chargeable outlays to the solicitor who incurred them.

Until the case concludes payments can only be submitted where the criteria for an interim payment has been met.

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