Dean of faculty of Advocates ruling on appearance of counsel without an agent
With effect from Monday 23rd September 2013, in terms of the recent ruling of the Dean of the Faculty of Advocates, there will no longer be a formal requirement for an instructing solicitor (or local agent) to attend behind counsel at any civil court hearing. This change will have an effect on the way that the Board will approach charges made by solicitors for attendance behind counsel.
Regulation 4 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 provides that a solicitor
shall be allowed such amount of fees … as shall be determined by the Board to be reasonable remuneration for work actually, necessarily and reasonably done.
In relation to entries in accounts in civil cases relating to attendances behind counsel at appearance on or after 23rd September 2013, solicitors should expect to be in a position to confirm why attendance behind counsel was required. If counsel has indicated a requirement for attendance of the instructing agent, then that, and the reasons, should be recorded in a file note or email from counsel (Note: no formal opinion or note from counsel is required, nor would any cost of seeking or producing such an opinion or note be allowable). Any other relevant factors relating to a decision to attend behind counsel should also be recorded.
The foregoing represents the Board’s position as the relaxation of the rule is introduced, and we will be taking an early opportunity to discuss matters with professional bodies. The approach to be taken is likely to evolve. In the meantime, the Board accepts that there will be cases where attendance with counsel is appropriate. Equally there are other cases where this will be not so apparent, and the Board would not expect a solicitor to attend hearings, such as procedural or formal hearings, or hearings where any substantive issues are narrow or in short compass and are susceptible to being instructed in advance.