Where approval has been granted for counsel, it is important to note that it may be only for a particular purpose and limited to certain items of work.
When making an application for the limited use of counsel, please always provide full reasons why the requirement for counsel is appropriate.
When applying for approval for an Opinion from counsel, please ensure that:
Please demonstrate how an Opinion may materially assist the client’s case or support early resolution of the case. An Opinion from counsel should address the prospects of success and/or benefit to client or the court, of undertaking a particular course of action.
When seeking an Opinion from counsel on how to proceed in a case on a particular legal matter where there is wealth of reported case law, we are unlikely to consider such a request. It is expected that you are capable of undertaking the appropriate research in those circumstances.
When approval is granted for counsel to conduct the proceedings, that grant includes:
All work will ultimately be subject to the accounts assessment process. The test to be applied at the conclusion of the case is that the work done must be:
A necessary note includes an Opinion or substantive note on the line of evidence that is integral to the client’s defense.
This does not include:
Any consultation with an expert witness is not covered in the grant of sanction for counsel. A separate sanction request must be made for any proposed consultation, whether or not the expert has already been approved to provide a report in the case. It is also required for consultation with any Crown expert and any proposed expert witness whose employment is not already approved.
When making an application for prior approval for consultation with an expert you should include:
In cases where the expert or counsel must travel to meet, you should provide detailed information as to why a face-to-face consultation is necessary. We would usually expect such consultations to take place by video call, unless this is not appropriate in the circumstances of the case.
Where approval is granted for counsel to conduct a trial in the sheriff or Justice of the Peace Court, this does not include the conduct of hearings that are considered routine.
It may be the case that certain hearings are not chargeable. Hearings which are considered to be within your capability and are not covered by the grant of sanction include:
Where you require counsel to attend at any of these hearings separate approval must be obtained.
Any application submitted should:
When approval is granted for the employment of senior and junior counsel, or two junior counsel, this will cover all necessary consultations and the conduct of the trial.
Except for the attendance at the first preliminary hearing and unless otherwise specified, payment will only be made for the attendance of one counsel at other hearings.
Only one fee will be payable for counsel’s attendance at a diet of deferred sentence except where the court is contemplating:
Only one fee will be payable for counsel’s attendance at a continued preliminary hearing except where designated as a hearing at which any of the following matters may be heard:
Our prior approval cannot be obtained for matters where the Fee Regulations do not allow payment. We will not consider applications submitted for any matter described above. In the event that more than one counsel appears at a hearing for which there is no provision for payment this cannot be rectified by a retrospective grant of sanction.
Where you and counsel are both acting in proceedings for the assisted person, we will only pay for work that we consider to be actually and reasonably done, due regard being made to economy.
We will assess whether work (including travel and waiting time) was necessary for the proper conduct of the case and if it was carried out in the most effective and cost efficient manner.
You should establish as early as possible how particular tasks might be best divided between members of the team in a manner that ensures maximum efficiency. You and counsel should liaise in allocating responsibilities.
Where approval is granted for the employment of two junior counsel, in addition to senior counsel, it is all the more important that detailed records are kept as to what documentation is perused and by whom. Only the level of sheetage perused by the individuals concerned will be chargeable by reference to the ranges of sheetage set out in the fee regulations.
Unnecessary or unexplained duplication of work will be abated at the accounts stage.
While legal aid is in place, neither you nor counsel can take any other payment in respect of any advice or anything done in connection with those proceedings [Section 32 of the Legal Aid (Scotland) Act 1986].
No other solicitor or counsel can advise or act for the assisted person in connection with the proceedings, this is prohibited.
The effect of this is that an assisted person cannot “top up” a grant of legal aid by paying privately for:
A solicitor advocate is a solicitor, whether instructed by another solicitor or not, “when and only when he is exercising his right of audience or acting in connection with the exercise of such a right….” [Regulation 2 of the Criminal Legal Aid (Scotland) Regulations 1996].
A solicitor advocate is not “counsel” for the purposes of legal aid payment in courts other than the:
As a result, in the event that we approve counsel for a case in the sheriff court that sanction can only be for a member of the Faculty of Advocates. A solicitor advocate is a “solicitor” in the lower courts.
We may consider a request for approval for unusual work to cover the use of a second solicitor in a sheriff court case where we are satisfied that the case requires more than one legal representative. If the second solicitor happens to be a solicitor advocate he/she can only be paid as a solicitor.
A solicitor advocate may be employed in place of junior counsel without reference to us for proceedings in the:
Where we approve the employment of senior counsel and a solicitor advocate is to be instructed, they must be:
A solicitor advocate who is a QC is a senior counsel in their own right.