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.

Counsel’s Opinion

When applying for approval for an Opinion from counsel, please ensure that:

  • The application is not premature.
  • There is enough information available to allow counsel to provide a meaningful Opinion.

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.

Consultation with counsel

When approval is granted for counsel to conduct the proceedings, that grant includes:

  • Necessary consultations with the client
  • Necessary notes

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:

  • Reasonable
  • Undertaken with due regard to economy

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:

  • Passing on basic instructions such as the precognition of a particular witness or where the instruction is essentially confirming a matter following consultation.
  • Simply correspondence between counsel and yourself.

Consultation between counsel and an expert witness

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:

  • A copy of any report prepared by the expert witness.
  • Detailed reasons as to why a consultation is required and why the information cannot be obtained by the provision of a brief supplementary report or by precognition of the expert by yourself.
  • Detailed information regarding the particular aspects of the report which require discussion with the expert.
  • An explanation that the method and location of the consultation is the most economical.

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.

Limitations on use of counsel in sheriff/JP court proceedings

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:

  • Attendance at a first diet
  • Attendance at a hearing in relation to specification of documents
  • An application for special measures and associated hearings
  • An intermediate diet
  • A hearing in relation to applications in terms of section 275
  • A hearing in relation to applications in terms of section 259
  • A hearing in relation to compatibility minutes
  • An agreed adjournment

Where you require counsel to attend at any of these hearings separate approval must be obtained.

Any application submitted should:

  • Address why the employment of counsel is appropriate.
  • Provide detailed information about any complex or novel issues that require to be dealt with at the hearing.

Limitations on use of counsel in a High Court case

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.

Attendance at a diet of deferred sentence

Only one fee will be payable for counsel’s attendance at a diet of deferred sentence except where the court is contemplating:

  • A mandatory or discretionary life sentence.
  • An order for lifelong restriction.
  • Any disposal under a mental disorder or where there is a hearing on evidence in mitigation.

Attendance at a continued preliminary hearing

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:

  • A preliminary minute.
  • A preliminary issue.
  • A devolution or compatibility minute.
  • An application under section 275 of the 1995 Act.
  • A petition to recover documents under a specification of documents where the petition is opposed or likely to involve substantive legal argument.
  • An evidential hearing or any other hearing involving substantive legal argument.

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.

Division of duties between you and counsel

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.

Only legal aid fees can be paid

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:

  • Work we have not approved.
  • The employment of counsel/ an expert witness whose employment we have not sanctioned.

 

Instructing a solicitor advocate

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:

  • UK Supreme Court
  • High Court
  • Sheriff Appeal Court

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.

Unusual work

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:

  • Sheriff Appeal Court
  • High Court
  • UK Supreme Court

Where we approve the employment of senior counsel and a solicitor advocate is to be instructed, they must be:

  • A solicitor advocate.
  • Registered as a senior solicitor advocate in terms of the Law Society of Scotland’s accreditation process.

A solicitor advocate who is a QC is a senior counsel in their own right.

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