https://www.slab.org.uk/guidance/proceedings-in-the-united-kingdom-supreme-court-uksc/
https://www.slab.org.uk/guidance/proceedings-in-the-united-kingdom-supreme-court-uksc/
This guidance applies to counsel’s fees in relation to criminal proceedings that must be assessed in accordance with:
Schedule 3 prescribes fees for work payable for proceedings in the UKSC.
The Table is complemented by notes on the operation which set out the rules for assessment for the majority of work that is necessary in UKSC appeal proceedings.
Where an application for leave to appeal to the UKSC has been refused by the High Court of Appeal, it is possible to then seek leave to appeal direct from the UKSC.
This is often referred to as an application for special leave to appeal to the UKSC and is covered by a distinct grant of legal aid.
Paragraph 1 of the Table of Fees is applicable for payments to you at the application for permission to appeal stage.
This fee applies where you are seeking permission to appeal on your client’s behalf.
This fee applies where the Lord Advocate, or another party, are seeking permission to appeal and where your client has an interest in the application for permission to appeal that required separate representation objecting to the application.
This fee applies where you are required to appear before the UKSC at the permission to appeal stage.
Applications are routinely dealt with on the papers but where further argument is required, an application for permission to appeal can be referred for an oral hearing.
Paragraph 2(a) of the notes on the operation states:
“where higher fees than those set out in the Table of Fees are sought, they must be explained in a note from counsel”.
Where a fee is charged at a higher rate you must provide written justification to support the charge made.
Where a fee is charged which exceeds the prescribed fee we must be satisfied that it is reasonable having regard to all the circumstances in the case before we can make payment.
Where we are not satisfied that an increased fee is allowable we must only allow a reasonable fee and invite you to provide further information in support of the charge which has been claimed.
For proceedings under paragraph 1 of the Table of Fees paragraph 2(b)(i) of the notes on the operation states:
“subject to any higher fees allowable under sub-paragraph (a), no other payments are permitted”.
If a claim is made for any work that is not prescribed we must disallow any such claim.
Paragraph 2(b)(ii) of the notes on the operation states:
“there is a working assumption that a single fee is allowed for one junior counsel even where sanction is authorised for two counsel and that it would only be in the most exceptional cases that fees are allowable for two counsel”.
Additionally, paragraph 2(b)(iii) of the notes on the operation states:
“a fee for senior counsel may be allowed instead of junior counsel if it is held to be necessary because of the difficulty or complexity of the case or for other good reason”.
The general rule is that a fee for one junior counsel is allowed for any work payable under paragraph 1 of the Table of Fees.
Where prior approval has been obtained for more than one counsel, most commonly senior and junior counsel, in exceptional cases we may allow a fee for senior counsel instead of, or in addition to junior counsel if this is held to be necessary because of the difficulty or complexity of the case or any other good reason.
Paragraph 2 of the Table of Fees is applicable where an application for permission to appeal to the UK Supreme Court has been granted, whether by the High Court of Appeal or the UKSC.
Paragraph 2(a) of the notes on the operation states:
“where higher fees than those set out in the Table of Fees are sought, they must be explained in a note from counsel”.
Where a fee is charged at a higher rate you must provide written justification to support the charge made.
Where a fee is charged which exceeds the prescribed fee we must be satisfied that it is reasonable having regard to all the circumstances in the case before we can make payment.
Where we are not satisfied that an increased fee is allowable we must only allow a reasonable fee and invite you to provide further information in support of the charge which has been claimed.
For proceedings under paragraph 2 of the Table of Fees paragraph 2(c)(i) of the notes on the operation states:
“counsel’s fees are allowed only where the Board has sanctioned the employment of counsel or where counsel is automatically available”.
Other than in an appeal arising from a murder conviction where senior and junior is automatic, where a claim is made by senior counsel, or more than one junior counsel, we must be satisfied that prior approval is in place.
Where we are not satisfied we must disallow any claim from senior counsel and ask you to clarify the position.
Paragraph 2(c)(ii) of the notes on the operation states:
“except on cause shown, the auditor shall not have regard to any information produced by counsel at taxation which was not made available to the Board at the time the Board made the offer to counsel which is subject to taxation”.
In the event that the case is referred to the Auditor, you must ensure that you have provided us with all information that you intend to provide in support of the claim at taxation before it can be considered.
In the event that additional information is to be provided that can only be done where the auditor allows it to be accepted.
We have the right to object to any such information, if we so wish.
Paragraph 2(c)(iii) of the notes on the operation states:
“in cases where junior counsel has undertaken most of the work on a particular item the auditor shall allow such fee to senior and junior counsel as appears appropriate to provide reasonable remuneration for the work”.
Where prior approval is in place for more than one counsel to represent the assisted person, we may allow a fee to both counsel, where appropriate.
We must allow reasonable remuneration having regard to the information provided by both counsel and where satisfied that junior was more involved a higher enhancement to the prescribed fee may be appropriate.
Paragraph 2(c)(iv) of the notes on the operation states:
“there is a working assumption that counsel for an appellant commands a higher fee than counsel for a respondent”.
When considering the level of fee under paragraph 2 of the Table of fees we must have regard to whether you were acting for an appellant or respondent.
In legal aid cases it will almost certainly be the case that you will be acting on behalf of the appellant.
Paragraph 2(c)(v) of the notes on the operation states:
“only one counsel’s fee is permitted on a petition of appeal and on attending judgment”.
Where prior approval is in place for more than one counsel to represent the assisted person, we must only allow one fee under paragraph 2(a) and 2(h) of the Table of Fees.
In most cases work of this nature should be undertaken by junior counsel acting alone and where a claim is made by senior counsel we must be satisfied that this level of representation was necessary having considered the difficulty or complexity of the case or for any other good reason.
Paragraph 2(c)(vi) of the notes on the operation states:
“the brief fee shall include all work on the brief, the case and the first day of attendance at the Supreme Court”.
A claim under paragraph 2(e) or 2(f) of the Table of Fees includes counsel’s attendance at the first day of the appeal.
Thereafter counsel is entitled to charge a refresher day (from day two of the hearing) under paragraph 2(g) of the Table of Fees.
In UKSC proceedings the overwhelming majority of fees are payable as prescribed fees.
Under paragraph 1 of the Table of Fees we cannot allow any other payment other than those fees that are prescribed.
Under paragraph 2 of the Table of Fees there is no similar rule which expressly precludes payment for work that is not prescribed.
In this scenario it may be reasonable to allow such fees as appear appropriate to provide reasonable remuneration for the work with regard to all the circumstances, including the general levels of fees in the Table of Fees.
For example, it may be reasonable to allow fees in respect of costs and any associated written submissions.
A claim for any other item must be explained in the narrative of the fee claim or in a detailed note from you.
Unlike in Schedule 2 the Table of Fees deals solely with the fees payable to counsel and does not make provision for payment of a travel supplement or associated costs such as mileage, train/flight outlays incurred or accommodation costs.
Where a claim is made for outlays in relation to travel or accommodation reasonable outlays can be allowed, on cause shown.