Handbooks Index

Legislation Handbook

 

Civil Legal Aid


Civil Fees Regulations 1989

 

Citation and commencement

Interpretation

Fees and outlays regulated by these Regulations

Fees and outlays allowable to solicitors

Accounts in respect of solicitors' fees and outlays

Fees allowable to counsel

Payments to account

Taxation of fees and outlays

Revocation

 

 

THE CIVIL LEGAL AID (SCOTLAND) FEES REGULATIONS 1989

 

Made:

14 August 1989

Laid before Parliament:

17 August 1989

Coming into force:

31 August 1989

 

 

As amended to take account of:

 

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1990 [S.I. 1990 No. 473 (S.58)] coming into force on 1 April 1990 (Regulations 1 and 4 only);

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1991 [S.I. 1991 No. 565 (S.50)] coming into force on 1 April 1991 (Regulations 1, 2 and 4(a) only);

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1994 [S.I. 1994 No. 1015 (S.47)] coming into force on 5 May 1994 (Regulations 1 - 5, 7 and 8 only);

The Civil Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 1994 [S.I. 1994 No. 1233 (S.64)] coming into force on 27 May 1994;

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1995 [S.I. 1995 No. 1044 (S.88)] coming into force on 5 May 1995;

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1997 [S.I. 1997 No. 689 (S.49)] coming into force on 1 April 1997; 

The Scotland Act 1998 (Consequential Modifications) (No. 1) Order 1999 [S.I. 1999 No. 1042] coming into force on 6 May 1999; and

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2002 [S.S.I. 2002 No. 496].

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:

 

Regulations

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.

Back to top

 

Interpretation

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

"auditor" means –

(a)          [2]in relation to proceedings in the Court of Session, Lands Valuation Appeal Court, House of Lords or Employment Appeal Tribunal, the Auditor of the Court of Session;

(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;  and

(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;

 

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

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

"outlays" does not include fees of counsel;

[5]"right of audience" means, in relation to a solicitor, a right of audience in the Court of Session, the House of Lords and the Judicial Committee of the Privy Council which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980;

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

[7]"solicitor-advocate" means 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 and "junior solicitor-advocate" and "senior solicitor-advocate" shall be construed in accordance with paragraph (1A) below;

[8] 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)[9]    For the purposes of these Regulations, a solicitor-advocate shall be –

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 House of Lords 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

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.

Back to top

 

 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)[10]  Subject to paragraphs (3)(b), (4) and (5), 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)[11]  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)          the Board may, subject to paragraphs (4) and (5), instead of making payment in accordance with paragraph (2), pay to the solicitor (and counsel as the case may be) who acted for that person, the amount of any fees and outlays so recovered.

(4) [12]  The Board shall only make payment in accordance with paragraph (3)(b) where –

(a)          it receives a request for such payment from the solicitor who, at the conclusion of the proceedings, was acting for the person in receipt of legal aid; and

(b)          that solicitor has consulted with any counsel who was acting for that person at the conclusion of the proceedings regarding that request

(5)[13]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 paragraph (4), or to any other solicitor or counsel who previously acted for that person, in respect of those proceedings.

Back to top

 

Fees and outlays allowable to solicitors

4.[14]  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 regulation 8 regarding the submission of accounts, a solicitor shall be allowed such fees and outlays as are reasonable for conducting the proceedings in a proper manner, as between solicitor and client, third party paying.

5.    (1)    A solicitor's fees in relation to proceedings in the Court of Session shall be calculated in accordance with either Schedule 1 or 3 but it shall not be competent to charge fees partly on the basis of Schedule 1 and partly on the basis of Schedule 3.

(2)    

(a)          Subject to sub-paragraphs (b) and (c) hereof a solicitor's fees in relation to proceedings in the sheriff court shall be calculated in accordance with either Schedule 2 or 3 but it shall not be competent to charge fees partly on the basis of Schedule 2 and partly on the basis of Schedule 3;

(b)          fees for work to which Chapters III or IV of Schedule 2 applies shall be chargeable only on the basis prescribed in those chapters;  and

(c)          fees for sequestrations in bankruptcy (other than summary sequestrations) or proceedings under the Social Work (Scotland) Act 1968 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)[15]  A solicitor's fees in relation to proceedings in the Judicial Committee of the Privy Council under paragraph 10, 12 or 13(b) of Schedule 6 to the Scotland Act 1998, House of Lords, Employment Appeal Tribunal, Lands Valuation Appeal Court, Scottish Land Court or Lands Tribunal for Scotland, or before the[16]Child Support Commissioners or the Social Security Commissioners, shall be calculated in accordance with Schedule 3.

Back to top

(4)    In all Court of Session proceedings a fee, additional to those set out in Schedules 1 or 3, may be allowed at the discretion of the Court to cover the responsibility undertaken by a solicitor in the conduct of the proceedings.  In the sheriff court, in proceedings of importance or requiring special preparation, the sheriff may allow a percentage increase in a cause on the Ordinary Roll, not exceeding 50 per cent, and 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.  The Court of Session in deciding whether to allow an additional fee and 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)          (g)[17]  the steps taken with a view to settling the proceedings, limiting the matters in dispute or limiting the scope of any hearing;  and

(h)          (h)[18]  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)    The auditor shall have the power to apportion any fees set out in Schedules 1 or 2 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.

Back to top

 

6.    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 3, 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.

 

Accounts in respect of solicitors' fees and outlays

8.    (1)    Subject to paragraph (2) below, accounts prepared in respect of fees and outlays allowable to solicitors shall be submitted to the Board not later than 6 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 later than the 6 months referred to in paragraph (1) if they consider that there is a special reason for late submission.

Back to top

 

Fees allowable to counsel

9.    Subject to the provisions of regulation 10 regarding calculation of fees, counsel may be allowed such fees as are reasonable for conducting the proceedings in a proper manner, as between solicitor and client, third party paying.

Back to top

 

10.    (1)    Counsel's fees in relation to proceedings in the Court of Session shall be calculated in accordance with Schedule 4.

(2)[19]  Counsel's fees for any work in relation to proceedings in the sheriff court, Judicial Committee of the Privy Council, House of Lords, Employment Appeal Tribunal, Lands Valuation Appeal Court, Scottish Land Court or Lands Tribunal for Scotland, or before the [20]Child Support Commissioners 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)[21]  The fees of a solicitor-advocate for any work in relation to proceedings in the House of Lords 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)[22]  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.

Back to top

 

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)[23]  A claim may be made under this Regulation only in relation to any case where –

(a)          in the proceedings for which the civil legal aid was granted the number of days on which a diet of proof, debate or like hearing is held exceeds 20 days;  or

(b)          a period of 2 years has elapsed since the date on which the Board gave notice in writing of the grant of civil legal aid

(3) [24]  A second or subsequent claim may be made under this Regulation -

(a)          where the number of days on which a diet of proof, debate or like hearing is held exceeds 20 days in any period subsequent to that covered by the immediately preceding claim;

or

(b)          where the period mentioned in paragraph 2(b) has elapsed, after an interval of not less than 12 months has elapsed since the immediately preceding claim was made.

(4) [25]  The amount of any payment in respect of a claim under this Regulation shall be 75 per cent of the fees that will become eligible for payment and earned during the period covered by the claim.

(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.

Back to top

 

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)    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 –

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

in relation to any report of the auditor of a sheriff court, the sheriff;  and

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

Back to top

 

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

 

 

Back to top

 

 

 

Schedules including fee tables follow the amended Civil Legal Aid (Scotland) (Fees) Regulations 1989 in this Handbook.  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.

 

 

Back to top


[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]Reference to restrictive practices court removed by S.S.I. 2002 No. 496 (in force from 1 December 2002).

[3] 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).

[4] 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).

[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).

[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] 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).

[10] Regulation 3(2) was substituted 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”.

[11] Regulation 3(3) was 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”.

[12] Regulation 3(4) was 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”.

[13] Regulation 3(5) was 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] The amended standard of taxation introduced by Regulation 4 of The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003 [S.S.I. 2003 No.178] applies to all work done or outlays incurred after 1 October 2003.  [See the further amended Fees Regulations arising from Civil Reform infra].

[15] 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 1988.”

[16]Inserted by S.S.I. 2002 No. 496 (in force from 1 December 2002), which also removed reference to the Restrictive Practices Court.

[17]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 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).

[18] 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 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).

[19] 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".

[20] Inserted by S.S.I. 2002 No. 496 (in force from 1 December 2002), which also removed reference to the Restrictive Practices Court.

[21]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).

[22] 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.

[23] As substituted by S.I. 1994 No. 1233 (in force from 27 May 1994 and applying only in relation to any case where a claim for payment of sums to account of fees is made on or after 27 May 1994).  Prior to this amendment, a claim for a payment to account of fees could be made only after a period of 2 years had elapsed since the Board gave notice of the grant of legal aid;  and further claims could be made at intervals of not less than 12 months from the date of the first, or immediately preceding claim.

[24] As substituted by S.I. 1994 No. 1233 (in force from 27 May 1994 and applying only in relation to any case where a claim for payment of sums to account of fees is made on or after 27 May 1994).  Prior to this amendment, a claim for a payment to account of fees could be made only after a period of 2 years had elapsed since the Board gave notice of the grant of legal aid;  and further claims could be made at intervals of not less than 12 months from the date of the first, or immediately preceding claim.

[25]As substituted by S.I. 1994 No. 1233 (in force from 27 May 1994 and applying only in relation to any case where a claim for payment of sums to account of fees is made on or after 27 May 1994).  Prior to this amendment, a claim for a payment to account of fees could be made only after a period of 2 years had elapsed since the Board gave notice of the grant of legal aid;  and further claims could be made at intervals of not less than 12 months from the date of the first, or immediately preceding claim.

 


Back to legislation handbook contents page