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Civil Legal Aid


Civil Fees (as amended) Regulations 1989

Regulations

The Secretary of State, in exercise of the powers conferred upon him by sections 33 and 36(1) and (2)(a) of the Legal Aid (Scotland) Act 1986, and of all other powers enabling him in that behalf, hereby makes the following Regulations:


Citation and commencement

Interpretation

Fees and outlays regulated by these Regulations

Fees and outlays allowable to solicitors

Fees allowable to counsel

Payments to account

Taxation of fees and outlays

Revocation

 

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Citation and commencement

1.    These Regulations may be cited as the Civil Legal Aid (Scotland) (Fees) Regulations 1989 and shall come into force on 31 August 1989.

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Interpretation

2. [1](1)   In these Regulations, unless the context otherwise requires –

[2]“the 2011 Act” means the Children’s Hearings (Scotland) Act 2011;  

"auditor" means –

(a)          [3]in relation to proceedings in the Court of Session, Lands Valuation Appeal Court, [3ab], First-tier Tribunal for Scotland  [3aa],  Upper Tribunal for Scotland or Employment Appeal Tribunal, the Auditor of the Court of Session;

(aa)    [3a]in relation to procedings in the Sheriff Apeal Court, the auditor of the[3ac] Sheriff  Appeal court

(b)          in relation to proceedings in a sheriff court the auditor of that sheriff court;

(c)          in relation to proceedings in the Scottish Land Court, the auditor of the Scottish Land Court;  

(d)          in relation to proceedings in the Lands Tribunal for Scotland either -

(i)  the Auditor of the Court of Session, or

(ii) the auditor of a sheriff court agreed to by the parties or, failing agreement, the auditor of a sheriff court specified by that Tribunal; and

(e)          [4] in relation to proceedings in the Supreme Court, the Registrar of the Supreme Court;

[5]"counsel" includes a solicitor-advocate, except in regulation 10(2) and Schedule 2;

[6]"junior counsel" or "junior" includes a junior solicitor-advocate;

"outlays" does not include fees of counsel;

[7]"right of audience" means, in relation to a solicitor, a right of audience in the Court of Session and the Supreme Court which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980;

[8]"senior counsel" or "senior" includes a senior solicitor-advocate except in paragraph (1A) below;  and

[9]"solicitor-advocate" means a solicitor, means a solicitor having a right of audience, whether instructed by another solicitor or not, when and    only when-

(a)  that solicitor is exercising that right of audience or acting in connection with the exercise of that right; or

(b)  in relation to proceedings in the Sheriff Appeal Court –

(i)           the Board has authorised the employment of counsel under regulation 21(1)(ca) of the Civil Legal Aid (Scotland) Regulations 2002; and

(ii)          that solicitor would have been exercising that right of audience, or acting in connection with the exercise of that right, had the proceedings taken place in a court to which section 25A of the Solicitors (Scotland) Act 1980 applied;

[10]and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.

(1A)[11]  For the purposes of these Regulations, a solicitor-advocate shall be –

(a)          a senior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a senior counsel in a case in the Supreme Court[12] or where the Board has authorised the employment of senior counsel under regulation 21(1)(b) or (2) of the Civil Legal Aid (Scotland) Regulations 1987; or

(b)          a junior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a junior counsel, irrespective of whether or not the Board has authorised the employment of senior counsel in the case.

(2)    In these Regulations, unless the context otherwise requires, any reference to proceedings in a court or tribunal includes any preparatory work done in connection with such proceedings, whether or not the proceedings were actually begun.

(3)    In these Regulations, unless the context otherwise requires, any reference to a numbered regulation is a reference to one of these Regulations and any reference to a numbered Schedule is a reference to a Schedule to these Regulations.

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Fees and outlays regulated by these Regulations

3.    (1)    These Regulations shall regulate the fees and outlays allowable to solicitors, and the fees allowable to counsel, from the Fund in respect of legal aid under the Legal Aid (Scotland) Act 1986, other than criminal legal aid, upon any taxation in accordance with regulation 12.

(2)[13]  Subject to paragraph 3(b) and paragraphs (4) to [14](7), solicitors shall be paid fees and outlays, and counsel shall be paid fees, in accordance with regulations 4 to 12 of, and the Schedules to, these Regulations.

(3) [15]  Where fees and outlays are recovered by virtue of an award of expenses in favour of a person who has received legal aid or of an agreement as to expenses in favour of such a person – 

(a)          accounts of such fees and outlays, where they are taxed, shall be taxed as if the work done for that person were not legal aid; and

(b)          [16]the Board may, at the request of the solicitor or any counsel acting for the person in receipt of legal aid at the conclusion of the proceedings, and subject to paragraphs (4) to (6), instead of making payment to that solicitor (or counsel as the case may be) in accordance with paragraph (2), pay to the solicitor (or counsel as the case may be) the amount of fees and outlays so recovered.

[17](4)  Where the Board agrees to a request from the solicitor for payment in accordance with paragraph (3)(b), the Board shall also make payment in accordance with paragraph (3)(b) to any counsel entitled to request such payment.

(4A)  Where counsel requests payment in accordance with paragraph (3)(b) in a case where the solicitor last acting requests payment in accordance with paragraph (2) –

(a)    the solicitor’s fees and outlays shall be paid in accordance with paragraph (2);

(b)    the Board shall determine as accurately as is reasonable what part of the fees and outlays recovered represents fees payable to any counsel;

(c)    the solicitor and counsel shall supply the Board with such information as the Board may require for the purpose of determining the sum referred to in paragraph (b);

(d)    subject to paragraph (5), the Board may make payment to counsel of the sum determined in accordance with sub-paragraph (b) if satisfied that it is reasonable to do so having regard to all the circumstances including –

(i)            the respective roles of counsel and any counsel previously acting for the person in receipt of legal aid;

(ii)          any sums paid or due to be paid to any counsel previously acting for the person in receipt of legal aid;

(iii)         the sum that would be paid to counsel in accordance with paragraph (2); and

(iv)         any resultant cost to the Fund or to the person in receipt of legal aid. 

(5) [18]The Board shall deduct from the sum payable in accordance with paragraph (3)(b) the amount of any payment made, or due to be made, by it to the solicitor or counsel referred to in [19]that paragraph, or to any other solicitor or counsel who previously acted for that person, in respect of those proceedings.

(6) [20] Where a payment is made to counsel in accordance with paragraph 3(b) no counsel who previously acted for the person in receipt of legal aid in those proceedings may refer to the auditor any question or dispute as to the amount of fees allowable in the proceedings.

[21](7)    In relation to children’s legal aid provided automatically under section 28C of the Legal Aid (Scotland) Act 1986, solicitors are to be paid fees in accordance with the fees prescribed in relation to children’s matters in Part 1 of Schedule 3 to the Advice and Assistance (Scotland) Regulations 1996.

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Fees and outlays allowable to solicitors

4.[22]  Subject to the provisions of regulations 5 and 7 regarding the calculation of fees, regulations 6 and 7 regarding the calculation of outlays, and the provisions of  [22a] 

regulations 7A and 8 regarding the submission of accounts, a solicitor shall be allowed such amount of fees and outlays as shall be determined by the Board to be reasonable remuneration for work actually, necessarily and reasonably done and outlays actually, necessarily and reasonably incurred, for conducting the proceedings in a proper manner, as between solicitor and client, third party paying.

5.     (1)[23] A solicitor's fees in relation to proceedings in the Court of Session [23ab] or the Upper Tribunal for Scotland shall be calculated in accordance with Schedule 5.

[23a](1A) A solicitor’s fees in relation to proceedings in the Sheriff Appeal Court shall be calculated in accordance with either Schedule 5 or Schedule 6 but it shall not be competent to charge fees partly on the basis of Schedule 5 and partly on the basis of Schedule 6.

[23bb](1B) A solicitor’s fees in relation to proceedings in the First-tier Tribunal for Scotland shall be calculated in accordance with schedule 2A.

 (2)[24] A solicitor's fees in relation to proceedings in the sheriff court – 

(a)          shall, subject to sub-paragraphs (b), [24a](ba)  and (c), be calculated in accordance with chapters I and II of Schedule 6;

(b)          which are listed in Schedule 7 shall be calculated in accordance with Schedule 5;

[24b]

[24c] (ba)   in a simple procedure case (within the meaning of section [24d] 72(3) of the Courts Reform (Scotland) Act 2014 shall be calculated in accordance with Schedule 2A; and

(c)          which consist of a summary cause or executry business shall be calculated in accordance with chapter III or IV respectively of Schedule 2.

(2A) For the purpose of calculating the fees set out in Schedule 6, a unit has the value of [25]£21.63.

(2B) Where a solicitor does work which comes within chapter I of Schedule 6 (undefended cases) and, in the same case, does work which comes within chapter II of that Schedule (defended cases) the fee for all work in that case shall be calculated on the basis of the fees set out in chapter II of that Schedule.

(2C) Subject to paragraph (2D), the Board may at its discretion allow a fee additional to the fees prescribed in chapter II of Schedule 6 where it is satisfied that any of the circumstances prescribed in chapter III of that Schedule exist, and have a significant effect on the conduct of the case.

(2D)[26] The additional fee allowable in accordance with paragraph (2C) shall be 15% of the fee authorised by Chapter II of Schedule 6 in respect of each of the circumstances specified in paragraphs 1 to 5A of Chapter III of that Schedule and 20% of the said fee authorised in respect of each of the circumstances specified in paragraphs 6 and 7 of said Chapter III, up to a maximum in any case of 50% of that fee

(2E)[27] Fees for sequestration in bankruptcy (other than summary sequestrations) shall be chargeable only on the basis of Schedule 3 and fees for summary sequestrations shall be chargeable only on the basis of 80 per cent of the fees in that Schedule.

(3)  A solicitor's fees in relation to proceedings in the [28] and the Supreme Court on appeal from the Court of Session or under paragraph 10 or 33[29] of Schedule 6 to the Scotland Act 1998, Employment Appeal Tribunal, Lands Valuation Appeal Court, Scottish Land Court or Lands Tribunal for Scotland, or before the [30]Upper Tribunal or the Social Security Commissioners, shall be calculated in accordance with [31]Schedule 5.

(4)   In all Court of Session proceedings [31a] or proceedings in the Sheriff Appeal Court a fee, additional to those set out in [32]Schedule 5 and not exceeding 50 per cent of those fees may be allowed at the discretion of the Court to cover the responsibility undertaken by a solicitor in the conduct of the proceedings.  [33]In the sheriff court, in proceedings of importance or requiring special preparation, the sheriff may allow a percentage increase in a cause on the Summary Cause Roll, not exceeding 100 per cent, of the fees authorised by Schedules 2 or 3 to cover the responsibility undertaken by the solicitor in the conduct of the proceedings.  [33a]The Court of Session, or as the case may be the Sheriff Appeal Court,  in deciding whether to allow an additional fee and [34]the Board, or as the case may be the Auditor, in determining that fee or the sheriff in fixing the amount of a percentage fee increase shall take into account the following factors –

(a)          the complexity of the proceedings and the number, difficulty or novelty of the questions involved;

(b)          the skill, specialised knowledge and responsibility required of and the time and labour expended by the solicitor;

(c)          the number and importance of the documents prepared or perused;

(d)          the place and circumstances of the proceedings or in which the solicitor's work of preparation for and conduct of it has been carried out;

(e)          the importance of the proceedings or the subject matter thereof to the client;

(f)           the amount or value of money or property involved;  and

(g)          [35]the steps taken with a view to settling the proceedings, limiting the matters in dispute or limiting the scope of any hearing;  and

(h)          [36]any other fees and allowances payable to the solicitor in respect of other items in the same proceedings and otherwise charged for in the account.

 

(5)    The Auditor of the Court of Session shall have power to increase or decrease any inclusive fee set out in Schedule 1 in any appropriate circumstances.

(6)[37]  The auditor shall have the power to apportion any fees set out in Schedules 1, 2 or 6 between solicitors in appropriate circumstances or to modify any such fees in the case of a solicitor acting for more than one party in the same proceedings or in the case of the same solicitor acting in more than one proceeding arising out of the same circumstances or in the event of the proceedings being settled or disposed of at a stage when the work covered by any inclusive fee has not been completed.

(7)    Where work done by a solicitor constitutes a supply of services in respect of which value-added tax is chargeable, there may be added to the amount of fees calculated in accordance with the foregoing paragraphs of this regulation an amount equal to the amount of value-added tax chargeable.

6.[38]  A solicitor's outlays shall include a charge in respect of posts and incidents of 12 per cent of the amount of the fees allowable to the solicitor in Schedules 1 and 2 (excluding any amount added in accordance with regulations 5(4) and (7).  In Schedule 5 or 6, without prejudice to any other claims for outlays, a solicitor shall not be allowed outlays representing posts and incidents.

7.    Where any work is carried out in the preparation for or conduct of the proceedings and that work could more economically have been done by instructing a local solicitor, only such fees and outlays shall be allowed as would have been allowable if a local solicitor had been instructed, including reasonable fees for instructing and corresponding with him, unless it was reasonable in the interests of the client that the solicitor in charge of the proceedings, or a solicitor or clerk authorised by him, should attend personally.

 

[38a]Single account where other solicitor employed

7A.   (1) Paragraphs (2) and (3) apply where a solicitor (“the nominated solicitor”) instructs another solicitor to carry out work in relation to proceedings (other than proceedings in the Sheriff Appeal Court, the Court of Session or the Supreme Court).

(2) Accounts in respect of fees and outlays allowable to solicitors shall be submitted to the Board only by the nominated solicitor, payment of the other solicitor being a matter for adjustment between the nominated solicitor and the other solicitor out of the fees and outlays allowed to the nominated solicitor.

(3) In determining the sum to be allowed to the nominated solicitor, the Board shall take into account also the work carried out by the other solicitor.

 

Accounts in respect of solicitors' fees and outlays

8.    (1)    [39]Subject to paragraph (2) below, accounts prepared in respect of fees and outlays allowable to solicitors and fees allowable to counsel shall be submitted to the Board no later than 4 months after the date of completion of the proceedings in respect of which that legal aid was granted.

(2)  The Board may accept accounts submitted in respect of fees and outlays allowable to solcitors and fees allowable to counsel later than the 4 months referred to in paragraph (1) if it considers that there is a special reason for the late submission.

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Fees allowable to counsel

9.    [40]Subject to the provisions of regulation 8 regarding the submission of accounts, and the provisions of regulation 10 regarding the calculation of fees, the fees allowable to counsel shall be fees for such work as shall be determined by the Board to have been actually and reasonably done, due regard being had to economy.

10.    (1)    Counsel's fees in relation to proceedings in the Court of Session [41][41b] Upper Tribunal for Scotland, Sheriff Appeal Court [41a], First-tier Tribunal for Scotland [41ab] and  sheriff court shall be calculated in accordance with Schedule 4.

(2)[42]  Counsel's fees for any work in relation to proceedings in the [43] Supreme Court, Restrictive Practices Court, Employment Appeal Tribunal, Lands Valuation Appeal Court, Scottish Land Court or Lands Tribunal for Scotland, or before the [44]Upper Tribunal or the Social Security Commissioners, shall be 90 per cent of the amount of fees which would be allowed for that work on a taxation of expenses between solicitor and client, third party paying, if the work done were not legal aid.

(2A)[45]  The fees of a solicitor-advocate for any work in relation to proceedings in the Supreme Court[46] shall be 90 per cent of the amount of fees which would be allowed for that work on a taxation of expenses between solicitor and client, third party paying, if the work done were not legal aid.

(3)[47]  Where work done by counsel constitutes a supply of services in respect of which value added tax is chargeable, there may be added to the amount of fees calculated in accordance with the foregoing paragraphs of this Regulation an amount equal to the amount of value added tax chargeable thereon.

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Payments to account

11.    (1)    A solicitor acting for, or counsel instructed on behalf of, a person receiving civil legal aid may prior to the completion of the proceedings for which the legal aid was granted submit a claim to the Board, in such form and complying with such terms and containing such information as the Board may require for assessment purposes, for payment of sums to account of his fees necessarily and reasonably incurred in connection with these proceedings.

(2)[48]A claim by counsel under this regulation may be made only in relation to any case where

(a)                a period of no less than 6 months has elapsed since the date on which the Board gave notice in writing of the grant of civil legal aid;

(b)                an interval of no less than 6 months has elapsed since the immediately preceding claim was made; or

(c)                counsel reasonably anticipates not receiving further instructions in the proceedings.

(3) The amount of any payment in respect of a claim by counsel under this regulation in relation to proceedings referred to in regulation 10(2) and (2A) shall be limited to 75% of the fees that will become eligible for payment and earned during the period covered by the claim.

(4) [49]When assessing the fee payable to a solicitor in respect of legal aid the Board may have regard to any payment, or payments, made to account under advice and assistance in relation to the same matter and, where the work in respect of which such payment, or payments, is made might reasonably have been carried out under legal aid, it may reduce the amount of the fee payable accordingly.

Important note

S.S.I 2003 No.178 (in force from 1 October 2003) inserted paragraph (2), and omitted paragraphs (3) and (4). These changes applied only in relation to cases where civil legal aid was granted on or after 1 October 2003 and only insofar as they related to payments to solicitors. The provisions have now been amended to apply to both solicitors and counsel respectively.

 (5)    The making of a claim under this Regulation shall not be regarded as an account of expenses nor shall the claim affect in any way the provisions of regulation 8 above with regard to the submission and acceptance of accounts prepared in respect of fees and outlays allowable to solicitors.

(6)    Where payment has been made in accordance with the provisions of this Regulation but the payment made exceeds in the case of any solicitor acting for the assisted person the total fees and outlays allowable to that solicitor in respect of the legal aid or in the case of any counsel instructed on behalf of the assisted person the total fees allowable to that counsel in respect of the legal aid, the excess shall be repaid to the Fund by such solicitor or counsel as the case may be:

Provided that where by reason of a failure to comply with the requirements of regulation 8 above with regard to submission of an account of his fees and outlays the amount of the fees and outlays allowable to a solicitor to whom payment has been made under this Regulation cannot be ascertained, the Board may require such solicitor to repay to the Fund the whole amount paid under this Regulation or such part thereof which it is satisfied may have been overpaid to the solicitor.

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Taxation of fees and outlays

12.    (1)    If any question or dispute arises between the Board and a solicitor or counsel as to the amount of fees or outlays allowable to the solicitor, or as to the amount of fees allowable to counsel, from the Fund under these Regulations, other than regulation 11 above, the matter shall be referred for taxation by the auditor.

(2)    A reference to the auditor under paragraph (1) above may be at the instance of the solicitor concerned or, where the question or dispute affects the fees allowable to counsel, of the counsel concerned, or of the Board, and the auditor shall give reasonable notice of the diet of taxation to the solicitor or counsel as appropriate and to the Board.

(3)    Subject to regulation 12A[50], the Board and any other party to a reference to the auditor under paragraph (1) above shall have the right to state written objections to the court in relation to the auditor's report within 14 days of the issue of that report, and may be heard thereon; and where the court is the Court of Session rule 349 of the Act of Sederunt (Rules of Court, consolidation and amendment) 1965 shall apply to the determination of any such objections.

(4)    For the purposes of this Regulation the expression "the court" means –

(a)          in relation to any report of the Auditor of the Court of Session, the Court of Session;

[50a](aa)  in relation to any report of the auditor of a sheriff court in relation to proceedings in the Sheriff Appeal Court, the Sheriff Appeal Court;

(b)          in relation to any report of the auditor of a sheriff court, [50b](other than a report in relation to proceedings in the Sheriff Appeal Court), the sheriff;  and

(c)          in relation to any report of the Auditor of the Scottish Land Court, the Chairman of the Scottish Land Court.

12A.[51] —(1) In relation to proceedings in the Supreme Court, the Board and any other party to a reference to the auditor who is dissatisfied with all or part of a taxation shall have the right to lodge a petition to the Supreme Court within 14 days of the taxation setting out the items objected to and the nature and grounds of the objections.

(2) The petition shall be served on the Board, any such other party who attended the taxation and any other party to whom the auditor directs that a copy should be delivered.

(3) Any party upon whom such a petition is delivered may within 14 days after such delivery lodge a response to the petition which shall be served on the Board, any such other party who attended the taxation and any other party to whom the auditor directs that a copy should be delivered.

(4) The petition and responses, if any, shall be considered by a panel of Justices, as defined by rule 3(2) of the Supreme Court Rules 2009, which may allow or dismiss the petition without a hearing, invite any or all of the parties to lodge submissions or further submissions in writing or direct that an oral hearing be held.

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Revocation

13.    Without prejudice to their continuation in effect for the purposes of legal aid for work done prior to 31 August 1989 the following Regulations are hereby revoked: – 

The Civil Legal Aid (Scotland) (Fees) Regulations 1987;

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1987;

The Civil Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 1987;

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1988;

The Civil Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 1988;

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1989.

 

 

Sanderson of Bowden

Minister of State,

Scottish Office

St Andrew's House, Edinburgh

14 August 1989

 

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The tables of fees in schedules 1-4 apply to cases where civil legal aid was made available prior to 1 October 2003.  Schedules 5-7 apply to grants of civil legal aid introduced as part of civil legal aid reform.  For ease of reference we have kept all the schedules together.

 

 

If you need to refer to earlier fee tables, prescribing fees for proceedings raised in the sheriff court before 1 January 1994 (the old schedule 2), you should refer to the 2001 edition

of the Scottish Legal Aid Handbook, available in PDF format on our website.


 

 

 

 


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[1] As amended by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) legal aid is made available on or after 5 May 1994 and (b) all work in respect of which legal aid is made available was done on or after that date) to the extent of the insertion of "otherwise" in the introduction to paragraph (1).

[2] Inserted by S.S.I. No 144 (with effect from 24 June 2013)

[3] Reference to restrictive practices court removed by S.S.I. 2002 No. 496 (in force from 1 December 2002).  Reference to House of Lords removed by S.S.I. 312 (in force from 1 October 2009).

[3ab] Inserted by S.S.I. 2016 No. 257 (in force from 1 December 2016)

[3aa] Inserted by S.S.I. 2017 No. 310 (in force from 1 December 2017)

[3a] Inserted by S.S.I 2015 No 380 (in force 1 January 2016)

[3ac] Substituted by S.S.I. 2016 No. 257 (in force from 1 December 2016)

[4] Inserted by S.S.I. 2007 No. 181 (in force from 29 March 2007).  Substituted by S.S.I. 312 (in force from 1 October 2009).

[5] As substituted or inserted by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) legal aid is made available on or after 5 May 1994 and (b) all work in respect of which legal aid is made available was done on or after that date).

[6] As substituted or inserted by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) legal aid is made available on or after 5 May 1994 and (b) all work in respect of which legal aid is made available was done on or after that date).

[7] As substituted or inserted by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) legal aid is made available on or after 5 May 1994 and (b) all work in respect of which legal aid is made available was done on or after that date).  Reference to Supreme Court substituted for reference to House of Lords and the Judicial Committee of the Privy Council by S.S.I. 312 (in force from 1 October 2009).

[8] As substituted or inserted by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) legal aid is made available on or after 5 May 1994 and (b) all work in respect of which legal aid is made available was done on or after that date).

[9] Substituted bu S.S.I 2015 No 380 (in force from 1 January 2016)

[10] As substituted or inserted by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) legal aid is made available on or after 5 May 1994 and (b) all work in respect of which legal aid is made available was done on or after that date).

[11] As substituted or inserted by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) legal aid is made available on or after 5 May 1994 and (b) all work in respect of which legal aid is made available was done on or after that date).

[12] Inserted by S.S.I. 2007 No. 181 (in force from 29 March 2007)

[13] Regulation 3(2) was substituted, and Regulations 3(3), (4) and (5) inserted by S.S.I. 2002 No. 496 (in force from 1 December 2002) and provides a regulatory framework, for the first time, to what was known as the “extra statutory concession”.

[14] Substituted by S.S.I. 2013 No 144 (with effect from 24 June 2013) – additional paragraph inserted as “7” overleaf

[15] Regulation 3(2) was substituted, and Regulations 3(3), (4) and (5) inserted by S.S.I. 2002 No. 496 (in force from 1 December 2002) and provides a regulatory framework, for the first time, to what was known as the “extra statutory concession”.

[16] Substituted by S.S.I. 2011 No. 160 (in force from 1 April 2011) and applying only to proceedings in which fees and outlays have been recovered on or after 1 April 2011.

[17] Substituted by S.S.I. 2011 No. 160 (in force from 1 April 2011) making new arrangements whereby counsel can, independently from the instructing solicitor, opt to accept judicial expenses subject to certain criteria, again applying only to proceedings where fees and outlays are recovered on or after 1 April 2011.

[18] Regulation 3(2) was substituted, and Regulations 3(3), (4) and (5) inserted by S.S.I. 2002 No. 496 (in force from 1 December 2002) and provides a regulatory framework, for the first time, to what was known as the “extra statutory concession”.

[19] Amended by S.S.I. 2011 No. 160 (in force from 1 April 2011 and applying only to proceedings in which fees and outlays have been recovered on or after 1 April 2011) .

[20] Inserted by S.S.I. 2011 No. 160 (as above).

[21] Inserted by S.S.I. 2013 No 144 (with effect from 24 June 2013)

[22] As amended by S.S.I. 2003 No. 178 (in force from 1 October 2003) by substituting “… actually, necessarily and reasonably…” for the previous reference to “reasonable”.  This brings the taxation standard more closely in line with that in advice and assistance and criminal legal aid.  It applies to all work done and outlays incurred after 1 October 2003 even where civil legal aid was granted before this date.

[22a] Substituted by S.S.I 2015 No.  380 (in formce from 1 January 2016)

[23] As amended by S.S.I. 2003 No. 178 (in force from 1 October 2003) which provides for Court of Session fees to be calculated under the new Schedule 5 rather than Schedule 1 or 3.  All Court of Session cases shall now be subject to an account drawn on a detailed basis.

[23a] Inserted by S.S.I 2015 No. 380 (in force from 1 January 2016)

[23ab] Inserted by S.S.I. 2016 No. 257 (in force from 1 December 2016)

[23bb] Inserted by S.S.I. 2017 No. 310 (in force from 1 December 2017)

[24] As substituted by S.S.I. 2003 No.178 (in force from 1 October 2003).  The various sub-paragraphs now make specific provision for the basis on which accounts shall be lodged depending on the nature of the proceedings.  Some procedures continue to be chargeable under Schedule 3.  A value is ascribed to the unit.  The fee for all work carried out in a case which is at any stage defended shall be calculated on the defended table:  a solicitor cannot lodge a defended and undefended account in the same case.  Provision is made for the Board, at its discretion, to allow a fee additional to those prescribed in Chapter II of Schedule 6 removing this discretion from the court.  Detailed fees are no longer subject to an uplift.  

[24a]

Inserted by S.S.I. 2016 No. 290 (in force from 28 November 2016)

[24b Omitted by S.S.I. 2016 No. 290 (in force from 28 November 2016)

[24c] Inserted by S.S.I. 2016 No. 290 (in force from 28 November 2016)

[24d] Substituted by S.S.I. 2016 No. 317 (in force from 28 November 2016)

[25}  As amended by S.S.I 2019 No.78 (only applying to fees for work done or outlays incurred on or after 26 April 2019) by substituting “£21.63” for “£21.00”. This figure was previously amended by S.S.I. 2009 No.203 (in force from 22 June 2009) by substituting “£21” for “£19” (only applying to fees for work done or outlays incurred on or after 1 April 2008).

[26] Substituted by S.S.I. 2007 No. 438 (in force from 1 November 2007).

[27] Reference to “proceedings under the Children (Scotland) Act 1995” deleted by S.S.I. No. 281 (in force from 1 July 2004).

[28] As amended by S.I. 1999 No. 1042 (in force from 6 May 1999) to the extent of inserting "Judicial Committee of the Privy Council under paragraph 10, 12 or 13(b) of Schedule 6 to the Scotland Act 1998".  Reference to Supreme Court substituted for reference to Judicial Committee of the Privy Council, and reference to House of Lords deleted, by S.S.I. 312 (in force from 1 October 2009).

[29] Inserted by S.S.I. 2007 No. 181 (in force from 29 March 2007)

[30] ”Child Support Commissioners” deleted, and “Upper Tribunal” substituted  by S.S.I. 2010 No. 166 (in force from 9 June 2010).

[31] As amended by S.S.I. 2003 No.178 (in force from 1 October 2003) to the extent of substituting “Schedule 5” for “Schedule 3”.

[31a] Inserted by S.S.I 2015 No. 380 (in force from 1 January 2016)

[32] As amended by S.S.I. 2003 No.178 (in force from 1 October 2003) to the extent of substituting “Schedule 5” for “Schedules 1 or 3”; and by adding the words “and not exceeding 50% of those fees”.

[33] As amended by S.S.I. 2003 No. 178 (in force from 1 October 2003) to the extent of omitting the words “in a cause on the Ordinary Roll, not exceeding 50% and…”.   The effect of this is to remove the discretion of the court in considering a percentage increase in fees in a civil legal aid case other than on the Summary Cause Roll.

[33a] Substituted by S.S.I 2015 no. 350 (in force 1 January 2016)

[34] The words “the Auditor” deleted, and “the Board, or as the case may be the Auditor,” inserted by S.S.I. 2009 No. 203 (in force from 22 June 2009) and only applying in relation to any case concluded on or after 22nd June 2009.

[35] Sub-paragraph (g) inserted, and in effect original sub-paragraph (g) re-numbered (h), by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) all work in respect of which legal aid is made available was done on or after 5 May 1994 and (b) the cause or action in respect of which legal aid is made available was commenced on or after 1 January 1994).

[36] Sub-paragraph (g) inserted, and in effect original sub-paragraph (g) re-numbered (h), by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) all work in respect of which legal aid is made available was done on or after 5 May 1994 and (b) the cause or action in respect of which legal aid is made available was commenced on or after 1 January 1994).

[37] As amended by S.S.I. 2003 No.178 (in force from 1 October 2003) by substituting “Schedules 1, 2 or 6” for “Schedules 1 or 2”.

[38] As amended by S.S.I. 2003 No.178 (in force from 1 October 2003)” to the extent of substituting “Schedule 5 or 6” for “Schedule 3”.

[38a] Inserted by S.S.I 2015 NO 380 (in force from 1 January 2016)

[39] Substituted by S.S.I 2011. No. 160 (in force from 1 April 2011.and applying only to proceedings in which the date of complection of the proceedings is on or after 1 April 2011).  The new provisions reduce the period for a solicitor to lodge an account with the Board from 6 months to 4 months and, for the first time, extends a time limit to the lodging of counsel’s fees.  A discretion remains to be exercised by the Board in both instances.

[40] Substituted by S.S.I. 2011 No. 160 (in force from 1 April 2011) but only in relation to work done and outlays incurred on or after 1 April 2011).  This provision removes the former basis or standard of taxation bringing it into line with the civil standard for solicitors.

[41] Inserted by S.S.I. 2011 No. 160 (in force from 1 April 2011) but only in relation to work done and outlays incurred on or after 1 April 2011.  For the first time, counsel shall be remunerated in the sheriff court by reference to a prescribed Table of Fees.

[41b] Inserted by S.S.I. 2016 No. 257 (in force from 1 December 2016)

[41a] Inserted by S.S.O 2015 no. 380 (in force from 1 January 2016)

[41ab] Inserted by S.S.I. 2017 No. 310 (in force from 1 December 2017)

[42] As amended by S.I. 1999 No. 1042 (in force from 6 May 1999) to the extent of inserting "Judicial Committee of the Privy Council".  Reference to Supreme Court substituted for reference to House of Lords and the Judicial Committee of the Privy Council by S.S.I. 312 (in force from 1 October 2009).

[43] As amended by S.S.I. 2011 No. 160 (in force from 1 April 2011) removing reference to the sheriff court.

[44] “Child Support Commissioners deleted, and “Upper Tribunal” substituted, by S.S.I. 2010 No. 166 (in force from 9 June 2010).

[45] Inserted by S.I. 1994 No. 1015 (in force from 5 May 1994 and applying in this instance only in relation to any case where (a) legal aid is made available on or after 5 May 1994 and (b) all work in respect of which legal aid is made available was done on or after that date).  Reference to Supreme Court substituted for reference to House of Lords or the Judicial Committee of the Privy Council by S.S.I. 312 (in force from 1 October 2009).

[46] Inserted by S.S.I. 2007 No. 181 (in force from 29 March 2007)

[47] Inserted by S.I. 1990 No. 473 (in force from 1 April 1990) and as amended by S.I. 1991 No. 565 (in force from 1 April 1991) to the extent of the insertion of "thereon" at the end of the paragraph.

[48] Substituted by S.S.I. 2011 No.160 (in force from 1 April 2011) and, insofar as relating to payments to counsel, these more relaxed provisions apply only in relation to fees for work carried out after 1 April 2011 .

[49] Substituted by S.S.I. 2011 No.160 (in force from 1 April 2011)

[50] Inserted by S.S.I. 2007 No. 181 (in force from 29 March 2007)

[50a] Inserted by S.S.I 2015 No. 380 (in force from 1 January 2016)

[50b] Inserted by S.S.I 2015 No. 380 (in force from 1 January 2016)

[51] Inserted by S.S.I. 2007 No. 181 (in force from 29 March 2007).  Reference to Supreme Court substituted for reference to the Judicial Committee of the Privy Council by S.S.I. 312 (in force from 1 October 2009).

 


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