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.
Waiting time requires to be allocated to the next case calling including any fixed payment case, whether ABWOR or summary legal aid.
Waiting time is the time necessarily spent by a solicitor in awaiting the calling of a case or during any adjournment where other chargeable work is not being carried out. Waiting time is attributable and must be allocated to the next case calling whether publicly-funded, privately-paying or undertaken pro bono), and whether chargeable by reference to detailed fees or fixed payments.
Paragraph 15(1) of the Notes on the operation of Schedule 1A to the criminal fees regulations states
“A fee for time spent waiting 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 (legally aided or not) in connection with which the travel was undertaken.
Paragraph 9 of the detailed Table of Fees forming Part 1 to the Schedule states
“9. The fee for each quarter of an hour spent carrying out work other than that prescribed in the preceding paragraphs–
(a) by a solicitor, provided the time is additional to the total time charged for under paragraph 1 [fee prescribed]…”
Paragraph 1 of the Table of Fees prescribes a minimum advocacy fee in respect of “any time up to the first half hour spent by a solicitor conducting the hearing”. Taken together, the fee for non-advocacy at paragraph 9 is not free-standing and cannot be charged separately from the advocacy fee. A separate fee for non-advocacy, including waiting, can only be charged to the extent that the time taken exceeds half an hour, for example, waiting for 10 minutes together with 12 minutes representation would not exceed 30 minutes and is included within the minimum advocacy fee.
Waiting time incurred by solicitors in a summary account prior to the introduction of fixed payments in 1999 was included within the base fees converted into the resultant fixed payments.
It is contrary to the regulations to avoid allocating waiting time to a fixed payment case, whether ABWOR or summary legal aid, and to seek to attribute such time to another case calling later, payable by reference to detailed fees.