https://www.slab.org.uk/guidance/solemn-fees-chargeable-under-schedule-1a-part-2/
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.
The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) (No. 2) Regulations 2023, introduces amongst other things, revised payment arrangements for solicitors in respect of solemn criminal proceedings.
The revised payment arrangements the “reforms” aim to deliver a long-standing commitment by Scottish Government to significantly simplify the payment system while addressing concerns that the previous payment system under-compensates solicitors for the work involved in the early preparation and resolution of cases where this is both possible and in the best interests of clients.
The reformed fee structure introduces a new Table of Fees under Schedule 1A, Parts 1 and 2, which moves away from the current hybrid payment model and continues the trend to simplify fee structures by extending the use of inclusive or block fees.
Elements of the hybrid system of feeing is maintained to some extent but there are block fees for more stages of the case. The following existing block fees remain largely unchanged (other than in respect of the general increase in fee levels):
Further blocks replace many but not all of the current detailed fees. Each block fee is chargeable where appropriate based on the circumstances and progress of the case, and each of the available block fees may be chargeable in any given case: a petition fee, bail appeal fee, communications fee, perusal fee, preparation fee, post-conviction fee.
Detailed fees will remain for the conduct of a hearing, “behind counsel”, waiting at court, and, where appropriate, travel.
Your account will be chargeable exclusively on the basis of schedule 1A, Part 2 of the Criminal Fees Regulations.
The exceptions to this are where the solicitor:
and/or
where the fees prescribed in Schedule 1A, Part 1 (detailed fees) apply.
Your account must be charged on the basis of Schedule 1, the pre-reform payment arrangements.
Transitional arrangements apply to cases where the grant of legal aid was made before 29 April 2023, and the proceedings conclude on or after that date.
The default position, subject to the exception below in circumstances where there has been a transfer of solicitor, is that your account will be chargeable under Schedule 1A, Part 2.
However, when submitting your account you will have the option to opt-out of the default position and charge on the basis of Schedule 1 (the pre-reform arrangements) if you so wish.
Where there has been a transfer of solicitor and any solicitor in those proceedings has submitted an account which has been paid, in full or in part, under Schedule 1 (the pre-reform arrangements) all subsequent accounts in those proceedings must also be charged on the basis of Schedule 1, unless we receive and approve a written request, in such form as we may specify, that the accounts of all of the respective solicitors be assessed and paid in accordance with Schedule 1A, Part 2.
Requests must be made, providing the necessary confirmation that all solicitors wish to submit their accounts under Schedule 1A, by email to:
Where the request is approved all solicitors must then submit paper accounts via email to the person who approved your request. Any post assessment correspondence will also be dealt with via email communication.
You cannot submit accounts using the Legal Aid Online system.
Where there is a transfer of solicitor and you intend to submit your account under schedule 1A you cannot submit your account until the conclusion of the proceedings. You must make any claim for fees or outlays, where appropriate, in advance of the conclusion of the proceedings using the streamlined interim payment arrangements that are available.
When we the final acting solicitor submits their account you will receive an online notification informing you to submit your account.
If you consider that the case requires more than one solicitor, you can make an application to Criminal Applications for unusual work. It is important to remember that in a sheriff court case if the second solicitor happens to be a solicitor advocate, he/she can only be paid as a solicitor.
Where Criminal Applications approve a request for a second solicitor, regardless of whether the proceedings are in the High Court or Sheriff Court, we cannot under any circumstances pay for more than one inclusive fee under paragraphs 1-6 of Schedule 1A Part 2, to the second solicitor.
The only work that we can pay for more than once in the proceedings relates to any work reasonably done by the second solicitor for the time engaged in travel, waiting, where counsel conducts the hearing or for conducting a hearing.
It should be noted that only one solicitor acting on behalf of the same assisted person can ever be paid a fee for ‘conducting a hearing’ at any one time.
All accounts submitted under schedule 1A, Part 2 must be submitted using Legal Aid Online.
Guidance on how to submit your accounts online is available in our e-learning section.
Our long standing taxation practice to restrict charges for research in line with the authority of Perry and another v The Lord Chancellor (The Times Law Reports 1994 p299, May 26 1994).
You are expected to be able to deal with everyday cases without the need for legal research. Familiarisation with the law, including new law is expected and is not exceptional. You will not normally be entitled to payment in respect of researching the law because:
However, in exceptional cases, where a novel, developing, unusual or complex point of law arises, requires legal research, we can on cause shown allow payment for that work on the basis of detailed fees prescribed in Schedule 1A, Part 1.
In support of the charges you must provide full details of the area of law researched and a supporting narrative as to why that research should be considered as exceptional and an estimate of the time it is expected to take to undertake the research.
It is recommended that you make an application to us before the work has been done which will avoid difficulties at the accounting stage. Applications should be made to the Accounts Specialists and should be sent by email to:
A number of the fees have been retained from the previous payment arrangements. Rather than specifying an individual fee for many items of work, we have extended the block fees payable for designated stages of the case and only fees in respect of time at court including waiting and, any necessary travel will be payable by way of detailed fees.
Accounts will include a combination of charges in respect of:
You will be entitled to charge a block fee under paragraphs 1, 3, 4 and 5 in almost every case.
In terms of paragraph 1(1) of the Notes on the operation of Schedule 1A, the block fees cover all work falling within that block of work with the exception of the following work activities:
where the fees prescribed fees in paragraphs 7, 9, 10 and 11 of Part 2 apply.
In addition:
A holiday court supplementary fee is payable where at a holiday court sitting a solicitor acts for a person appearing from custody on the day on which that person is first brought to a court to attend a first examination.
In terms of paragraph 5 of the Notes on the operation of Schedule 1A, the block fees include the following work carried out in relation to the case whether that work is done by the nominated solicitor or by any other party:
That work cannot under any circumstances be charged as an outlay.
There are no provisions to opt-out of any individual block fee.
You must either charge on the basis of Schedule 1A, Part 2 for the proceedings or make an application, where appropriate, in terms of Regulation 7A “Solemn proceedings (exceptional) fees” and, if approved, the proceedings must then be charged on the basis of the detailed fees prescribed in Schedule 1A, Part 1.
The new structure maintains the current system of case categories.
The fees are determined by (subject to the exception below where no High Court indictment is served and the case is not reduced to summary complaint):
for cases in the High Court, the nature of the category for which the highest fee is prescribed against that individual accused.
In a case in which an indictment has been served, the relevant column of Part 2 of the Table of Fees which applies is based on the relevant offence listed in Schedule 2, Part I, Chapter 1 is:
Schedule 2 is the Table of Fees for Counsel and that is where the relevant case categories are listed.
You must ensure that you have informed the Criminal Applications Department where a case has been indicted to the High Court otherwise when you are preparing the online account the rates will be set at sheriff court levels, with the exception of where the offence is listed immediately below and you have confirmed in the account synopsis that the case was not indicted, which then sets the fees at High Court column A rates.
Where no indictment is served, and the matter is not reduced to summary proceedings, and the offence is listed in paragraph 7(a) of the Notes on the operation of schedule 1A, the fees under column A (High Court) are chargeable. The listed offences are:
(i) murder
(ii) multiple attempted murder
(iii) culpable homicide
(iv) rape and offences under sections 1, 2, 3(2)(a) and 18 to 27 of the 2009 Act
(v) assault and robbery involving commercial premises
(vi) importation of controlled drugs
(vii) an offence under section 1 (causing death by dangerous driving), section 3A (causing death by careless driving when under the influence of drink or drugs) or 3ZB (causing death by driving while unlicensed or uninsured) of the 1988 Act
(viii) an offence under the Explosive Substances Act 1883
(ix) a firearms offence
(x) incest
(xi) sodomy
(xii) sedition
(xiii) treason
(xiv) torture
(xv) war crimes
(xvi) an offence under the 2000 Act or the Terrorism Act 2006
(xvii) an offence under section 46 of the Criminal Justice and Licensing (Scotland) Act 2010 or section 1 or 4 of the Human Trafficking and Exploitation (Scotland) Act 2015.
If it is unclear from the information we hold that the case has concluded, or any of the above charges appear on the petition, we will only be able to authorise payment for any completed blocks or detailed fees under column C (sheriff court) only.
If the matter is reduced to summary proceedings only sheriff court rates can be charged.
Where the proceedings relate to an offence which is not listed in paragraph 3(a), (b) or (c) of Chapter 1 of Part I of Schedule 2 the offence is deemed to be listed in whichever of those sub-paragraphs we, or as the case may be the auditor, considers appropriate having regard to all the circumstances.
Where the proceedings are not listed but the case is indicted to the sheriff court only fees under column C are payable.
The following fees, which are covered by a single grant of legal aid, are payable only once in any proceedings:
In terms of paragraph 18 of the Notes on the operation of Schedule 1A, where agency is transferred from one solicitor to another:
No fee can therefore be paid to the transferring solicitor for a block of work not completed at the point of transfer unless and until the remaining work of that block is completed.
Similarly, no fee is payable to the transferee solicitor in respect of the perusal of any documentation that has already been made available and perused by the transferring solicitor where:
Mindful that the perusal charges in a case cannot be determined until the case concludes no perusal charges can be allowed in a case until we can establish what preparation fee is payable in the case.
Where there is a transfer of solicitor our approach will be to apportion equally the perusal volume which is included in the preparation fee. For example, in any case where there had been a transfer and two solicitors are entitled to payment we will expect each solicitor to deduct:-
Given that certain block fees are payable for “all work” (and can only be paid once in any case) related to the case we will be unable to determine what proportion, if any, of the fee is payable prior to the conclusion of that block of work.
In order to calculate what fee is payable we must be able to determine:
Where a block fee has been claimed and disallowed as a result of a transfer the assessment officer responsible for assessing the final (solicitor who has concluded the case) account will establish what payments are due to all solicitors in the case and make payment of the appropriate sum that is due.
The fees have been designed so that in most cases they ought to be paid as claimed, or without the need for lengthy post assessment negotiation procedures.
There are however a number of rules which are set out in the Notes on the operation of the Table of Fees explaining what our approach to assessment must be.
The petition or full committal fee remains largely unchanged.
There are two separate fees prescribed to reflect the different ways in which this stage of the proceedings will progress.
The fee is for all work from the taking of initial instructions up until the client is admitted to bail or committed until liberated in due course of law:
The higher fee that is prescribed “in any other case” is to reflect the additional work that will ordinarily be necessary in advance of the full committal hearing.
The fee is payable only once in any case.
The bail appeal fee remains unchanged.
This fee is only payable in respect of a bail appeal under section 32 of the 1995 Act, or an appeal under section 201(4) of the 1995 Act.
The fee is for all work in connection with a bail appeal hearing including any continued diet and, where necessary, instructing Edinburgh agents.
The fee is payable at a standard rate regardless of whether the appeal is in the High Court or Sheriff Appeal Court.
The fee is payable more than once in a case but only in relation to a separate and distinct bail appeal.
This fee cannot be claimed in respect of a bail review. Any work done in connection with a bail review is covered by the general fees payable in the case, with the exception of any time engaged in respect of travel, waiting and attending court, which can be charged for separately.
The fee is an all-encompassing fee and covers all forms of communications in the case including meetings, consultations, letters, telephone calls, etc. from the conclusion of the work in paragraph 1 up to and including the commencement of any work for which a fee is payable in accordance with paragraph 6.
Any communications done during the period where the block fees for:
are payable are covered by those respective block fees.
Where the client is acquitted any communications following acquittal are included in the communication fee.
The fee is payable only once in any case.
There is no provision to “opt-out” of this fee in isolation.
The payment provisions in respect of perusal charges have been streamlined.
The charge allowable in any case however can only be determined when we can establish what preparation fee is payable in the case.
The fees in respect of perusal are payable, having regard to the different types of disclosure which ordinarily feature in a solemn criminal case, on the following basis:
The latter documentation is intended as a means to ‘catch-all’ documentation that is not easily measured by way of sheets or minutes. You must charge for that perusal based on the time actually and reasonably engaged.
For example, this may include perusal of a telephone report which often contains a mix of different types of material including text and audio messages, video content, photographs, cookies, etc. or a labelled production such as a knife, car etc.
Where the disclosed material is a combination of statements etc. (payable on the basis of sheets considered), audio/video (payable on the basis of runtime), and other material (payable on the basis of reasonable time engaged), the standard fee payable will be calculated on the basis of the aggregate total of sheets, minutes of audio/video runtime and minutes reasonably engaged, payable per tranche of 250 sheets and/or minutes.
The first 1,000 sheets, minutes or labels in a case where:
The first 50 sheets, minutes or labels in a case where:
are not separately chargeable as those respective amounts are included in the preparation fee which is payable in the case.
The perusal fee is not restricted to payment once in a case.
The exception to this is where any documentation has already been made available and perused by the transferring solicitor where:-
and only one perusal fee is allowable.
In any other case where there is a transfer of solicitor the fee is payable to each solicitor based on the aggregated sheets and minutes they have actually and reasonably perused. This should provide the necessary flexibility to the incoming solicitor to “read in” to the case in order to provide appropriate advice to the client and prepare the defence.
It is important to recognise that the payment more than once is where there is a change of solicitor. If for example, the case was transferred from solicitor A to solicitor B and back to solicitor A, solicitor A (the same solicitor) would not be entitled to two separate perusal payments. Only one fee would be payable to solicitor A based on the total volume of distinct material which has been disclosed in the case and the preparation fee payable in the case.
In a case which involves 150 sheets + 100 minutes of CCTV + 100 minutes of “other material” that would equate to a total of 350 sheets or minutes.
In a case which:
The perusal fee covers a block of 250 sheets/minutes (or part thereof), so in a case with 300 chargeable sheets/minutes which proceeded to trial, or was disposed of by other means, you would be entitled to payment of 2 blocks x the prescribed fee.
The fee payable is calculated on the basis of the actual documentation which has been actually and reasonably considered, due regard being had to economy and the fee is only payable if we, or as the case may be the auditor, is satisfied that:
there has been due regard to the manner of perusal and reasonably available tools and aids.
There is no definition of ‘tools and aids’ but it is to emphasise that where those exist they must be used. For example, where the disclosure contains material in MS Excel format that software should be used to interrogate and analyse the data and it should not be charged based on the actual word count of the sheetage based on 250 words or numbers.
Although this is likely to arise infrequently where the amount of disclosure exceeds 50,000 sheets or minutes:
For example, if there were 51,000 chargeable sheets or minutes in a case which proceeded to trial or was disposed by means other than s76, the solicitor would be entitled to:
The payment arrangements have been designed to significantly simplify the assessment process and avoid the need to become involved in protracted post assessment negotiations.
However, where we require further information in support of any charge you must:
There are three separate and distinct preparation fees. The fee that is payable cannot be determined or paid until the case concludes.
The preparation fees cover all other work in the case from the conclusion of the work in paragraph 1 (Petition/Full committal), except where a separate fee is otherwise prescribed.
It is anticipated that in almost every case a preparation fee will be payable. This includes where the proceedings are reduced to summary complaint, where you can claim a preparation fee at the prescribed rate under Schedule 1A, Part 2, paragraph 5(c), where the case is disposed of by any other means.
The fees are prescribed at different rates and are structured in a way that ought to cover the different ways in which a case is disposed of. The fees cover where the case:
As stated in the perusal guidance:
In circumstances where:
the preparation fee will be calculated by how proceedings are finally disposed of in that case.
The exception to this is where upon re-indictment following desertion pro loco et tempore after trial commenced on an earlier indictment, the case is disposed of by any means, and then you may elect to claim the fee either on the basis of the prior indictment or the final disposal.
This will ensure that you can charge the higher preparation fee available in that case and would prevent a situation where you are penalised from preparing the case for trial only to see that case being deserted and re-raised and disposed of by other means.
The preparation fee is payable only once in any case.
This fee remains unchanged. However there is now no provision to allow detailed charges in addition to this block fee except where they are specifically provided for in paragraph 2 of the Notes on the operation.
This fee covers all work in connection with post-conviction discussions, advice and representation including advising and giving an opinion on the prospects of any appeal.
It is only chargeable following a client’s conviction. Where the client is acquitted or the Crown elect not to proceed with the prosecution no fee is chargeable and any advice following acquittal is included in the communications fee.
It is payable only once in any case.
This is the fee for each quarter of an hour that you spend conducting a hearing.
This supplementary fee is payable in addition to the conduct fee, where at a holiday court sitting you act for a person appearing from custody on the day on which that person is first brought to a court to attend a first examination.
This is the fee for each quarter of an hour where counsel conducts the hearing. A different rate is specified depending on whether you or a clerk attend court behind counsel.
The fee is higher than the prescribed fee in respect of waiting at court.
This is the fee for each quarter of an hour spent waiting at court.
A different rate is specified depending on whether you or a clerk attend court and require to wait at court.
The fee is chargeable only for time necessarily spent waiting at court for a hearing, provided that time has not been occupied in connection with another case (whether such other case is legally aided or not).
Waiting should be charged to the first case calling except where waiting time is in respect of multiple attendances for the same accused. Where that arises, the waiting fee should be apportioned equally between each of the relevant cases (whether the cases are legally aided or not).
No waiting time is payable during the court’s lunch break.
This is the fee for each quarter of an hour spent travelling.
A different rate is specified depending on whether you or a clerk travel.
A fee for travelling time is chargeable only for time necessarily spent travelling to and from:
Where a fee is claimed and is payable in respect of travel, other than at court, in respect of travel undertaken in relation to work for which a fee is payable under paragraphs 1 to 6 of Part 2 of the Table of Fees, no additional fee can be claimed in respect of any work done during that time when a charge for travel is made.
A fee for travelling time can be allowed in circumstances other than those listed above but only if we, or as the case may be the auditor, is satisfied that it was necessary for the advancement of the case that you required to be physically present at the place travelled to.
A fee for travelling time is not chargeable if it would have been more economical to use a local solicitor, unless it was reasonable in the interests of the client that the nominated solicitor, or a solicitor assisting the nominated solicitor attended personally.
The fee chargeable for travelling time is the fee for time necessarily spent travelling divided by the number of cases (whether legally aided or not) in connection with which the travel was undertaken.
The travel fees chargeable will be calculated based on the total time engaged in travel that day.
Travel is chargeable from the place of business or employment of the person travelling to the relevant location, except where travel:-
Reasonable travel outlays are payable in addition to the fees which are payable in the case.
