SOLICITORS - this guidance is for use by experts, witnesses and shorthand writers. Please direct them to this page so they are aware of our policies and to prevent difficulties at the account stage. It can also be used for your own reference to help understand and explain their role.
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You should read this if you have been asked by a solicitor to carry out work providing expert opinion for a case being carried out under legal aid.
When solicitors act for a client they will agree the basis upon which payment will be made. When the case will involve public funding through payment of legal aid we will carry out various tests and make decisions about what will be paid to the solicitor.
In these cases, where a solicitor commissions work from other professionals they may need to obtain prior approval (sanction) before work is commissioned, and our policies and tests will be applied to the claim for payment once the work has been carried out.
The information is to help you understand:
The invoice must also detail the dates the work was actually undertaken. This is essential as payment is based on when the legal aid cover is in place. If the work was carried out at a stage where the solicitor has not got the necessary legal aid cover in place, they are responsible for your fees.
The time in adding to professional development is not something which can normally be charged to the client or use as part of the claim.
However, time spent in researching a very unusual or unique aspect in particular case may be allowed in exceptional circumstances. There must be something in the case that raises it above the norm in order to justify research on this ground.
In these instances the reasons for this should be recorded by you explaining why this was necessary having regard to the individual circumstances of the case.
A claim not backed up by this information will result in us querying this further and withholding payment until you provide clarification.
What can be covered by cancellation fees?
Payment will be restricted to a maximum of two days fees based on a normal court day, not exceeding six hours .
If the expert incurred non-refundable expenses for accommodation, rail or air fares, receipts will need to be produced before payment can be considered.
In instances where a locum has been used, SLAB will pay for either the expert/professional or locum’s fee, but under no circumstances will SLAB pay for both.
SLAB will also need to know whether a locum had been appointed to cover the expert or GP’s absence and if this affected the expert/GP from returning to their practice.
If the locum’s costs are being claimed for SLAB will need sight of the practice’s terms and conditions of temporary employment; or any written contractual arrangement with the locum confirming the agreed rate for their services and the period that this covers.
Witnesses cited to give evidence in a legal aid case are entitled to make a claim for any out of pocket expenses and/or any financial loss incurred for the day(s) they have given evidence in court .
A claim may be made for the following expenses if the relevant evidence is produced.
We will meet the cost of out of pocket expenses which they assess as being reasonable and necessary.
Receipts will require to be produced to vouch for any travel claim submitted. Without the relevant receipts payment cannot be considered.
The assessment will include consideration of the following factors:
If the witness has travelled by car we will only pay the mileage rate that is set by HMRC based on the rates that were in use on the date you travelled. You can find these rates on HMRC’s website. The website is updated every six months in recognition of fluctuating fuel costs. The fuel costs are based on a car with an engine up to 1400cc. We can make no additional allowance for cars with larger engines.
We will be unable to meet the loss of any sum claimed if the witness is unable, for whatever reason, to produce evidence in support of your claim.
The maximum that will be paid by SLAB to a witness for loss of earnings is £400.00 per day (net loss).
Shorthand writers’ fees for carrying out their duties are set by Act of Sederunt. There are separate instruments for the Court of Session and sheriff court. The instruments do not make provision for travel expenses.
Solicitors will be aware that we have established arrangements in relation to travel costs for solicitors and other parties, such as experts, professionals and interpreters.
As from the 27 June 2016 similar arrangements, outlined as follows, are applied in relation to shorthand writers’ costs.
Any invoices received on or after that date will be assessed in accordance with these arrangements. It would be beneficial for our assessment purposes if invoices were themselves prepared in accordance with the arrangements. This will allow us to process and pay invoices quicker.
Invoices will be assessed as follows:
Solicitors instructing shorthand writer services should make clear that any invoices should provide a breakdown (and in multi-day cases/invoices, day by day) of each of the components of attendance time i.e. court, waiting, lunch period, travel time, travel outlays, and subsistence outlays.
It is important that you get sanction before you instruct the work, as this is the best way to help avoid problems when you seek payment.
It is worth remembering that you might also need to look at your case cost limit when you are seeking sanction.
A grant of sanction will use up some of your case costs, and you may need an increase as a result.
When we grant sanction, we give an indication to you that in the event that you proceed to instruct the work anticipated, and subject to certain important provisos, we will make payment.
The provisos include that
These are all things that you will need to satisfy us about at the time when we assess the account and its component parts (which include, say, any report charges from a professional acting as expert) for payment. If satisfied, we will make payment of the relevant charges.
It is important to understand that the cost limit intimated with a grant of sanction is not an agreed price, or that the cost limit will be the amount paid. The cost limit is simply that – a maximum figure beyond which we cannot make payment.
What is actually paid, other than in circumstances where the work has proceeded throughout on a “fixed price” basis, is the amount determined as reasonable under reference to the estimate given pre sanction, and a breakdown of the work undertaken, upon completion.