Preparation

In addition to the prescribed fees you may be entitled to a fee for separate preparation.

The notes on the operation set out comprehensive rules as to when a fee is, and is not payable, and how you must calculate the correct fee payable where preparation can be claimed.

Our approach to assessment is set out in detail below.

Paragraph 12 of the notes on the operation states:

“Subject to paragraphs 13 to 15 below, the fees prescribed in Parts I and III of the Table of Fees in this Schedule shall include all preparation”.

This confirms that unless the criteria for a separate preparation fee has been met we must disallow any separate claim that is made and invite you to provide further information in support of the claim.

In terms of paragraph 13(a) of the notes on the operation a fee for separate preparation shall be allowed only on the following conditions.  It states:

“such a fee is allowable only once in any case to junior or senior, junior and senior and junior and junior counsel representing an applicant or assisted person, notwithstanding that the applicant or assisted person is represented by more than one junior or senior counsel during the course of the case”

Where preparation is payable it can only be paid only once to counsel of the same status.

In order to do so you should verify that no other claims in the case feature a charge for preparation.

Where we are satisfied that more than one counsel are acting in a different capacity we will allow preparation to each counsel, where appropriate.

Where more than one counsel of the same status make a claim for preparation it is a matter for the respective counsel to decide on the appropriate allocation and in the event of a dispute they may elect to refer matters to the auditor for determination – see Auditor of Court of Session decisions 2014 in the cases of HMA v TS and HMA v MW.

This can result in a number of scenarios that can arise and the most common are covered below.

In order to calculate the appropriate number of days please refer to ‘Calculation of the preparation fee’.

Where prior approval is in place for a ‘junior alone’ to act in the case, and more than one junior counsel represent the assisted person during the course of the case, we will ensure that the appropriate number of days is paid.

For example, where counsel A and counsel B act at different times in the course of the case as ‘junior alone’ and both claim preparation we may have to apportion the appropriate number of days payable.

Where full preparation has already been paid to counsel A, we must disallow any charge from counsel B.

Where more than one counsel has claimed preparation, but no preparation has been paid, we can offer to make payment of preparation on an apportioned basis, where appropriate and it is justified to do so.

In the event that this offer is not acceptable to all counsel we will inform the respective counsel that it is a matter for them to agree between themselves and, where necessary, they can refer the matter to the Auditor of court.

Where prior approval is in place for senior and junior counsel to act in the case, and a single senior and single junior represent the assisted person, as both counsel are acting in different capacities both are entitled to the full number of days payable.

For example, where counsel A acts as senior counsel and counsel B acts as ‘junior with leader’ throughout the whole case each would be entitled to the full number of days payable.

Where more than one counsel represents the assisted person in the same capacity we will ensure that the appropriate number of days are paid.

For example, where counsel A and counsel B act as ‘senior counsel’ and counsel C acts as ‘junior with leader’ we may have to apportion the appropriate number of days payable to counsel A and counsel B.

Counsel C would be entitled to the full number of days payable as they would be the only counsel acting as ‘junior with leader’.

Where prior approval is in place for senior and two junior counsel to act in the case, and a single senior and two junior represent the assisted person, as there is only one senior counsel both would be entitled to the full number of days payable .

However, as there are two junior counsel we will ensure that the appropriate number of days are paid.

For example, where counsel A acts as ‘senior counsel’ and Counsel B and counsel C act as ‘junior with leader’ we may have to apportion the appropriate number of days payable to counsel B and Counsel C.

Counsel A would be entitled to the full number of days payable as the only counsel acting as ‘senior’.

Where sanction is in place for ‘junior alone’ and this is subsequently amended to allow ‘senior alone’ to act in the case, as both counsel have acted in different capacities both may be entitled to the full number of days payable.

For example, if counsel A acts as junior counsel and counsel B then acts as ‘senior counsel’ each may be entitled to the full number of days payable, assuming of course that full disclosure in the case has been made to both counsel.

Our approach is that where the case involves preparation we must establish the number of sets of preparation payable driven by either the number, or different capacities, of counsel acting in that case.

For example, where ‘junior as leader’ is instructed and replaced by senior we consider each to have acted as the lead counsel and one set of preparation is payable.

For the purpose of calculating preparation our view is that it is reasonable to apportion the appropriate number of days payable to both lead counsel.

Similarly where ‘junior alone’ is instructed and replaced by ‘junior with leader’ we consider each to have acted as the junior counsel and our view is that only one set of preparation is payable.

For the purpose of calculating preparation our view is that we must apportion the appropriate number of days payable to both junior counsel.

In terms of paragraph 13(b) of the notes on the operation a fee for separate preparation shall be allowed only on the following conditions:

“in allowing such a fee the Board, or as the case may be the auditor, must be satisfied that the level of preparation was necessary, reasonable and proportionate in all the circumstances of the case”.

Where preparation is claimed we must be satisfied that the documentation was necessary, reasonable and proportionately considered.

The documentation must then be calculated with reference to the definition of a sheet under paragraph 22(a) of the notes on the operation.

Where the level of preparation claimed in a multiple co-accused case is claimed at a higher rate by counsel on behalf of one accused, when compared to any other counsel in the same case for a co-accused, we must be satisfied that the additional preparation is reasonable.

For example, the first accused on the Indictment may feature on additional charges that do not feature other co-accused and the disclosed material may only be relevant to those additional charges.

In that type of scenario it may be reasonable to allow preparation based on an increased sheetage to counsel acting for the first accused.

Where we are not satisfied that the additional preparation is reasonable we must reduce the preparation charge to a level which we are satisfied can be paid and invite you to provide further information in support of the claim.

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

“’documentation’ means Crown statements, precognitions, productions, including defence productions, and labels”.

We must be satisfied that the material that has been considered is relevant to the case against the client.

This includes, where appropriate, ‘defence productions’ where they are necessarily considered by counsel.

Paragraph 13(c) of the notes on the operation states:

“Counsel shall produce records providing a detailed summary of the nature of the work or, if applicable, the nature of the documentation perused, at each stage of the process, the time taken and when and where the work was undertaken and shall retain and produce, if requested, any contemporaneous record or notes made in the course of preparation”.

Where it is not clear how the sheetage has been calculated, or where it is not clear why one counsel has charged more than another counsel in the same case we may request sight of a detailed summary of work under this paragraph before making payment.

We will, where possible, make payment of a sum that appears reasonable based on the information available.

Preparation can be considered at the conclusion of the case or where there are ongoing proceeds of crime proceedings and trial counsel is no longer acting.

Where you charge a fee for preparation and it is not clear that the case is concluded we must disallow any claim and invite you to provide further information in support of the claim.

A fee for separate preparation shall be allowed only where the following conditions are met.

Paragraph 13(d) of the notes on the operation states:

“Except in the circumstances described in paragraph 14(c) such a fee is not payable until the case to which it relates has concluded”.

In the event that the case is concluded we will allow the appropriate number of days payable.

Where the case is ongoing we will disallow any claim for preparation unless we are made aware that a statement of information has been served.

The only exception to this is set out below.

A fee for separate preparation shall be allowed, prior to the conclusion of a case where the following conditions are met.

Paragraph 14(c) of the notes on the operation states:

“Where at the point of conviction—

1. a Statement of Information is served on the convicted person in respect of proceedings in relation to proceeds of crime, and
2. trial counsel no longer intends to act for the client in relation to the proceeds of crime proceedings”.

In the event that a statement of information has been served and trial counsel is no longer acting, we will allow the appropriate number of days payable in line with paragraph 13(e) of the notes on the operation which states:

“Where paragraph 14(c) applies—

1. the preparation fee payable to trial counsel prior to the conclusion of the case may not exceed 50% of the sums payable at the point of conviction, and
2.  the balance of any preparation fee is payable only when the case to which it relates has concluded”.

Where we are aware that a statement of information has been served and trial counsel is no longer acting we will allow trial counsel no more than 50% of the appropriate number of days payable.

At the conclusion of the case the person responsible for assessing the final fee is responsible for ensuring that the appropriate number of days are paid.

Where we receive a claim for preparation in proceeds of crime proceedings we must also have regard to documentation necessarily considered in the first instance proceedings.

For example, where first instance counsel considered 800 sheets and separately counsel in the proceeds of crime proceedings considered a further 350 sheets of new material, preparation in the case would be based on a combined 1,150 sheets of disclosed material.

The appropriate number of days of separate preparation allowed under paragraphs 13 and 14 must be calculated by reference to the total number of actual sheets of documentation considered by counsel as follows:

No preparation fee payable for the first 1,000 sheets

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

1. no fee for separate preparation for the first 1,000 sheets shall be allowed under any circumstances;

Where we are not satisfied from the information provided that 1,000 sheets have been considered we must disallow any claim for preparation and invite counsel to provide further information in support of the claim.

Calculation of preparation where the case is disposed of at a s76 hearing or where a trial or equivalent trial fee is payable

It is important to note that the terms of paragraph 14(a) and (b) are not optional as they are determined as a matter of fact on the basis of how the case has proceeded and what fees are payable in that case.

Paragraph 14(a) of the notes on the operation states:

“A fee for separate preparation shall be allowed only in any case–

1. the case is disposed of at a hearing under section 76 of the 1995 Act; or
   1. the case is disposed of at a hearing under section 76 of the 1995 Act; or
   2. the case proceeds to trial or for a hearing where a fee is payable at the full rate for a trial under paragraphs 4(q) to (t) of Chapters 1 and 2 of Part 1 or paragraphs 3(p) to (u) of Chapters 1 and 2 of Part 3 of the Table of Fees,

and the level of preparation is that to which paragraph 15 (d) below applies;

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

“where the total number of sheets exceeds 7,500, 2.5 days are allowable for each additional 2,500 sheets”.

 Where the jury has been balloted and empanelled, resulting in the full rate for trial being paid this paragraph is engaged.

Additionally, where any of the following fees are payable in the case this paragraph is engaged:

• trial within a trial
• commission on evidence and any other hearing, other than one for which a fee is prescribed, at which evidence is adduced
• examination of the facts in a case of insanity or diminished responsibility
• proof in mitigation
• deferred sentence in which evidence is taken from an expert witness
• first diet (Sheriff Court only) prior to cases where an indictment was served on or after 25 September 2023.

This is in accordance with the decision of Lady Rae in March 2014, in the Note of Objections of Mark Stewart QC to the Report to the Auditor of the Court of Session.

Where preparation is payable under this paragraph no claim can be made for the first 7,500 sheets.

Equivalent trial fees that do not engaged paragraph 14(a)(ii)

It is important to note that paragraph 14(a)(ii) of the notes on the operation does not include the trial fees payable under the following paragraphs:

• preliminary hearing, adjourned or continued in which witnesses called to give evidence
• first diet, adjourned or continued in which witnesses called to give evidence
• confiscation diet in which substantial evidence is led or where full settlement is agreed where the confiscation proceedings follow acceptance of a guilty plea to the charge or charges.

As such payment of the full trial rate under any of those paragraphs does not engage paragraph 14(a)(ii) and preparation would be calculated as if no trial, or equivalent trial fee, was payable.

Calculation of preparation in any other case

In any other case preparation must be assessed in terms of paragraph 14(b) of the notes on operation. It states:

1. where a plea of guilty is tendered, or a plea of not guilty is accepted or where a case is deserted simpliciter or deserted and the Crown does not intend to re-raise proceedings, up to and including the first day of trial and the case does not proceed to trial, and the level of preparation is that to which paragraph 15 (c) below applies”.

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

“the ranges are –

1.  3 days are allowable for 1,001-3,500 sheets;
2.  5.5 days are allowable for 1,001-7,000 sheets;
3.  7.5 days are allowable for 1,001-10,000 sheets;
4. 2.5 days are allowable for each additional 2,500 sheets”.

The sheetage provided by counsel does not have to be an exact number and, in most cases, it is sufficient for you to state the range of fees under which the charge is being made.

Paragraph 15(b) of the notes on the operation confirms how we must calculate a fee for additional preparation.  It states:

2. each range set out in sub-paragraphs (c) and (d) below specifies a total number of days which may be allowed per total number of sheets within the range, and each day shall be paid at the rate of two-thirds of the fee prescribed for the conduct of a trial at paragraph 3 of Chapters 1 and 2 of Part I, or as the case may be, paragraph 2 of Chapters 1 and 2 of Part III of the Table of Fees in this Schedule depending on the nature of the charges and the status of counsel;

Where we have established that the case has concluded and are satisfied that the sheetage considered is sufficient to allow preparation we will calculate the prescribed level of preparation payable in the case and allow each preparation day payable at two-thirds of the full rate for trial.

Where the ‘trial per day’ fee has changed during the proceedings we will allow preparation based on the applicable fee when the work was carried out.

For example, where 10 days preparation is payable in a case and the ‘trial per day’ fee  changes we will allow the appropriate number of days at the applicable fee. For example, where five days preparation is undertaken before the fee change you would allow:

• five days at the applicable ‘trial per day’ fee prior to the fee change; and
• five days at the applicable ‘trial per day’ fee post fee change.

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

“sheet” shall consist of 250 words and numbers, or each minute of an un-transcribed tape.

Where preparation involves the consideration of material such as crown statements, medical records etc, this can be translated to a ‘sheet’ by establishing the word count of each sheet disclosed.

Unless we have information to the contrary we will assess the claim based on the sheetage as provided by counsel.

Where preparation involves the viewing of material with an identifiable running time, such as CCTV footage and Police Interviews (other than joint investigative interviews) each minute of actual running time can be translated to a ‘sheet’.

Unless we have information to the contrary we will assess the claim based on the running time as provided by counsel.

Where preparation involves the consideration of material which does not easily compute to the definition of a ‘sheet’ such as material often found in a cyber-report or multi-media disk including photographs, images, thumbnails and metadata (that is, cookies etc.) we will calculate preparation with reference to the reasonable time engaged for considering such documents, and translate this to the appropriate sheetage, for instance, one minute engaged equates to one sheet for preparation purposes.

Where preparation in the case involves a combination of all the above we will establish the aggregated sheetage and time in its entirety.

For example, a case may involve:

• 2,000 sheets of disclosed material
• 500 minutes of CCTV (which would equate to 500 sheets) and
• 720 minutes perusal of material such as multi-media, computer, telephone records and photographs (which would equate to 720 sheets).

That is a combined 3,220 sheets (or equivalent) preparation, and if payable we will allow the fee, where appropriate, calculated on that basis.

Where counsel acts in two different capacities in the case (for example, ‘junior alone’ and then either ‘junior as leader’ or ‘junior with leader’) if we are in any doubt as to the fee claimed we will calculate the level of preparation done during each period and apply the appropriate rate based on when the work was actually undertaken and status of counsel at that time.

Where the client is being represented by solicitor and counsel we must be satisfied how particular tasks have, or should have, been reasonably divided between members of the team in a manner that ensures maximum efficiency and avoids unnecessary duplication of effort.

This is particularly relevant and important in the context of preparation chargeable by counsel which is calculated on a sheetage (or sheetage equivalent) basis.