Basis on which we assess requests for payment of children’s fees and outlays: the standard of taxation

The regulatory tests and standard of taxation can be found at regulations 4 – 7 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989.

The standard of taxation applicable to the assessment of a legal aid account is solicitor and client, third party paying. This standard of taxation is quite different from the standard applicable when you carry out work

• on an agent and client, client paying basis, where the only test is whether the work is actually done and providing it was done on the client’s instructions; or
• on a judicial basis, as between party and party, where the only test is whether the work done is reasonable.

Fees and outlays allowable upon assessment by us or taxation by the Auditor will only be for work actually, necessarily and reasonably done and outlays actually, necessarily and reasonably incurred for conducting the proceedings in a proper manner, as between solicitor and client, third part paying [Regulation 4 of Civil Legal Aid (Scotland) (Fees) Regulations 1989].

You must never ask a client to put in funds to cover an outlay or fees at a time when legal aid is being provided.

Fees payable to counsel, unlike the position in advice and assistance and ABWOR, are paid directly by us to Faculty Services Ltd and should not be paid by the solicitor.

As this work is payable by reference to the ABWOR Table of Fees the statutory tests and standard of taxation can be found at regulations 17 to 19 of the Advice and Assistance (Scotland) Regulations 1996.

Fees and outlays allowable upon assessment by us or taxation by the Auditor will only be for work actually, necessarily and reasonably done… and outlays actually, necessarily and reasonably incurred in connection with the subject matter of the advice and assistance, due regard being had to economy. The test, including a test of “necessity”, applies to both fees and outlays incurred.

The words “due regard being had to economy” are a clear injunction to actively address the question of cost in carrying out the work.  The standard is equivalent to the civil standard of “agent and client, third party paying” the third party in legal aid cases being the Legal Aid Fund, described above.

Fees payable to counsel, unlike the position in legal aid, are treated as outlays which you incur and for which you can be reimbursed at the conclusion of the advice/representation if payment is due out of the Fund.

In our assessment of the account, we will objectively consider whether the work you did meets the statutory tests and standard of taxation. We must be satisfied that the work carried out was done in the most efficient and cost effective manner, consistent with giving proper advice.