An overview and the aims of the solemn fee reforms
Overview: aims of the solemn fee reforms
The revised Solemn fee structure is prescribed in Schedule 1A (specifically part 2) of the Criminal Fees Regulations.
The solemn reforms represent a substantial investment by Scottish Government and are estimated to increase solemn fees by circa £2.3m in a full year spend.
They will not necessarily increase the payment due in every case when compared to the pre-reform hybrid model.
The level of profitability in any case will vary and depend on a number of factors such as the business model adopted by the solicitor as to how the case is conducted, the features of that case, and method of case disposal.
However, it is anticipated that the vast majority of cases will see a fee increase and we expect that the average fees paid in relation to solemn cases in a full year will increase overall by circa 10.3%, based on the profile of cases that were included in our costing analysis.
The fee structure has been streamlined moving away from the pre-reform hybrid payment model.
The structure introduced broadly accords with the proposals outlined in the Law Society of Scotland discussion paper, ‘Legal Assistance in Scotland – Fit for the 21st century’.
They extend the use of inclusive or block fees, resulting in much simpler accounting aimed at ensuring (alongside the much simpler interim payment systems that have now been introduced), faster payment to solicitors in order to improve cash flow.
They should also reduce administrative costs for solicitors associated with the preparation of bespoke and often complex and lengthy accounts which can take a considerable amount of time to prepare and adjust.
There will no longer be a requirement, save but in the most exceptional of cases, to prepare lengthy accounts extending to hundreds and in some cases thousands of entries.
The streamlined structure significantly reduces the scope for abatement and by dint of that fact it will, in turn, reduce the need for time spent in post payment negotiations.
The reforms introduce an enhanced s76 disposal fee to accommodate one of the recommendations of Sheriff Principal Bowen in the Independent Review of Sheriff and Jury Procedure and the Scottish Governments commitment to encourage pleas of guilty, where appropriate, at the earliest stage wherever this is in the interests of justice.
Although there is no longer any provision to “opt-out” of an individual inclusive or block fee, there continues to be provision to accommodate exceptional cases, which are then paid on a detailed fee basis.
The revised payment system combines several fees into a case preparation or case disposal fee that is payable in every case that extends beyond the full committal stage.
In addition, new block fees have been introduced for all forms of communication and for perusal fees.
Some of the pre-existing inclusive fees (initial petition/committal fee, bail appeals and post-conviction fee) are also chargeable, alongside detailed charging associated with court appearances (conduct, behind counsel, travel and waiting).
The block fees which have been carried over from the previous hybrid solemn structure, that is:
Block fee 1 – the petition or full committal fee
Block fee 2 – bail appeal
Block fee 6 – post-conviction fees
have all been increased in value by 3.3%.
The fees for waiting at court and travel time have similarly been increased by 3.3%.
The fees for when a solicitor conducts a case at court have been increased by 12.8% and the fees for when a solicitor is behind counsel at court have increased by 11.8%.
The block fees for ‘communications’ and case ‘preparation’ will be payable in every case which extends beyond the work covered by block fee 1 and a separate block fee for perusal should be payable in the vast majority of cases.
Guidance in relation to how to draft and submit your account and detailed guidance on the operation of the fees are available at:
Transitional arrangements – what table of fees must be used
2. Transitional arrangements – what table of fees must be used
This covers what Table of Fees must be used when submitting your account.
The solemn reforms came into force on the 29 April.
The revised Table of Fees and Notes on the operation are prescribed in Schedule 1A of the Criminal Fees Regulations. Part 1 is the table of detailed fees which will only apply in very limited circumstances.
In relation to solemn proceedings other than proceedings in which regulation 7A(1) (exceptional fees) applies the fees payable to a solicitor for all work are calculated in accordance with the fees prescribed in Part 2 of the Table of Fees.
The Default Position
The default position as to how accounts require to be submitted is set out in regulation 4(1) of the Criminal Fees Regulations, which specifies that subject to the following provisions of this regulation and to regulations 5 (ID Parades), 6 (Duty solicitor fees) and 9 (time limits for submitting accounts), the fees allowable to solicitors shall be those specified in Schedule 1A.
This will apply to all solemn cases which commence on or after 29 April 2023.
For any case where the proceedings conclude before the 29 April 2023, you must charge on the basis of the Table of Fees under Schedule 1.
Paragraph 1 of the Notes on the operation of Schedule 1A
Makes clear that fees payable to a solicitor for all work are to be calculated in accordance with the fees prescribed in Part 2 of the Table of Fees (fees for solemn first instance proceedings), and only the fees specified for that work in that Part are payable.
Regulation 4(1ZA) & 4(1ZB) of the Criminal Fees Regulations then sets out the only exceptions to schedule 1A charging.
Regulation 4(1ZA) makes provision where there is no transfer of solicitor
You have the option to charge under schedule 1 (pre-reform) if you so wish in terms of Regulation 4(1ZA) but only in circumstances where the case commenced before but concluded after the 29 April 2023.
It is important to bear in mind that if you elect to charge on the basis of schedule 1A you will be entitled to claim the increased fees that are payable under that Table of Fees for block fee 1 (petition or full committal), block fee 2 (bail appeal), block fee 6 (post-conviction), conduct at court, sitting behind counsel, waiting at court and travel time even where that work is done before the 29 April 2023.
Our systems have been designed so that you will be prompted to enter the date of conclusion when first accessing the online account. This is because that date will determine what fee table(s) are available to you. Where the date is after the 29 April 2023, the fee table will default to the reform Schedule 1A Table of Fees.
However, if you wish to claim under Schedule 1 you can do so by simply selecting the “Solemn Pre-Reform Fees” option where you are asked “Please choose the Fee Table” you wish to use.
Regulation 4(1ZB) of the Criminal Fees Regulations makes provision where there is a transfer of solicitor
As the previous and reformed payment systems are so different to one another where there is a transfer it is not possible to mix the two payment regimes to allow different agents to charge on different Tables of Fees. All solicitors must charge using the same Table of Fees. Mindful of that provision has been made in the regulations to clarify how accounts must be submitted.
Where there has been a transfer of solicitor regulation 4(1ZB) allows an account to be charged under schedule 1 (pre-reform) but only in a very limited set of circumstances. Those circumstances are where:
the solicitor who transferred agency (outgoing solicitor) has submitted an account before 29 April 2023, and that account was paid (in part or in full) before the 29/4.
In any other case the account must be submitted under schedule 1A.
It is important to note that the reference to an account being “paid” is a reference to a “final” account of that solicitor having been paid. It does not apply where a solicitor has submitted an interim account which could consist of fees or outlays.
Where there has been a transfer and the solicitor who transferred agency has had an account paid before 29 April 2023 under schedule 1 – Regulation 4(1ZB)(d) of the Criminal Fees Regulations
Makes a further exception which allows a solicitor who has had an account paid under schedule 1 before 29 April 2023 (in part or in full) to re-submit that account under schedule 1A but only where we receive a written request from all solicitors in that case that they all wish to submit their accounts under schedule 1A.
If all solicitors do not agree then the accounts must all be submitted under schedule 1, reflecting the table that was used when the initial account was submitted and paid.
We have not been able in the time available to develop our systems to accommodate online accounts where there is a change to the type of account from schedule 1 to schedule 1A. We do not expect this to arise often but where it does the account must be submitted on paper and any post assessment negotiations will be undertaken via email communications.
Applications in such cases should be made to the Criminal Accounts team by email. You can find the contact details in our legal aid guidance section.
All accounts must be submitted online
All accounts under Schedule 1A must (and this includes where the account includes detailed charging in relation to a procedural appeal or proceeds of crime) be submitted using the streamlined online accounts system which has been developed specifically for those cases. The system will automatically calculate the fees you are entitled to claim based on the information that you provide in support of the account.
Paper claims can still be submitted for any case where exceptional fees has been approved by the Criminal Applications Department.
Where a warrant has been issued
In most cases you should use the streamlined interim payment process to submit a claim where a warrant has been issued until that case actually concludes.
However, you may submit a ‘final’ account where a client has not been apprehended after a period of four months from the date of issue of the warrant subject to the caveat that in the event of a subsequent transfer of solicitor we may require to reassess the account and, where appropriate, take steps to recover any overpayment which has been made.
In such cases when you are completing the online account synopsis you should select “Other” from the “Case result” dropdown field and explain why you are submitting your account by way of free hand text in the “Provide details of the case result” field (for example, warrant issued over 4 months ago).
Transfer of solicitor – procedure for submitting your account & how we must apportion fees where there's a transfer of solicitor
Transfers of solicitor – procedure for submitting your account and how we must apportion fees where there is a transfer of solicitor
In a transfer case when can I submit my final account?
As the block fees cannot be paid until a block of work is actually completed (and in the case of communications, preparation or post-conviction) that will mean the case must have concluded you cannot submit your final account when your involvement comes to an end if you are not the last acting agent.
You should use the streamlined interim payment process to make a claim for any fees or outlays (excluding mileage) prior to the case concluding. No account is required for interim fee claims but if you wish you can use our online accounts system to create a draft account to assist you in calculating the fee that you expect to be paid.
We will send a notification to all outgoing agents who have acted in a case when the last acting agent has submitted their final account. It is only at that time will we be able to determine what fee is payable to each solicitor. The assessment officer responsible for assessing your claim will liaise with you, where necessary, to ensure that you are being paid the correct amount due.
Apportionment of Fees
Paragraph 18 of the Notes on the operation of schedule 1A, sets out the rules which apply where there is a transfer of solicitor.
Where agency is transferred from one solicitor to another—
(a) the fee for a block of work commenced and completed by the same solicitor is payable to that solicitor;
(b) the fee for a block of work commenced by one solicitor but completed by another is to be apportioned equally between the solicitors who undertook work falling within that block.
We have no discretion to apportion a fee on any other basis.
It is important to note that the payment is apportioned where there is a transfer of solicitor. So in circumstances where agency was transferred from solicitor A to Solicitor B and back to solicitor A there is still only two solicitors and the fees would be apportioned 50/50 in such cases rather than on a 2/3rd and 1/3rd apportionment.
The block fees, with the exception of the block in relation to perusal charges, are only payable once in a case.
The block fee for perusal is payable to each solicitor in the case except where the transferee solicitor is considering any documentation that has already been made available and perused by the transferring solicitor in circumstances where:
the transfer takes place post-conviction,
the work is in relation to confiscation proceedings, and
the work is covered under any existing grant of criminal legal aid.
Although no block perusal fee can be claimed in such cases the incoming solicitor will charge their account for proceeds of crime work on the basis of the detailed fees prescribed under Part 1 of schedule 1A. So they can still charge for the perusal of new material that is disclosed in respect of the proceeds of crime along with any other charges for work reasonably done.
Exceptions which allow for work to be charged in addition to the block fees prescribed
Exceptions which allow for work to be charged in addition to the block fees prescribed
Paragraph 2 of the Notes on the operation of schedule 1A, sets out the circumstances where fees are payable in addition to the fees prescribed under Part 2 of Schedule 1A – the block fees—
(a) attending an identification parade held by or on behalf of the prosecutor (within the meaning of section 307 of the Criminal Procedure (Scotland) Act 1995), in connection with or in contemplation of criminal proceedings against the person so represented, in which case the fees specified in regulation 5 of these Regulations will apply;
It is very important to note that an ID parade must take place and the attendance must be by a solicitor before we can make any payment. Where the ID Parade does not proceed, or where a solicitors clerk attends, no separate payment can be made.
Regulation 5 continues to prescribe a block fee for the first hour of an ID parade and a fee for each subsequent quarter hour.
(b) work in connection with any appeal, or referral by the Lord Advocate, where those proceedings are covered by the grant of criminal legal aid in respect of the solemn first instance proceedings, in which case the fees specified in Part 1 of the Table of Fees (detailed fees) will apply to that work;
This will mostly cover appeals in connection with preliminary diets under s74 of the 1995, and you can charge separately for that work on the basis of detailed fees.
(c) where confiscation proceedings are being brought against the accused, and the confiscation is treated as part of the sentencing process, work that is covered under any existing grant of criminal legal aid, in which case the fees specified in Part 1 of the Table of Fees (detailed fees) will apply to that work.
Where you are charging for the work that is chargeable under Schedule 1A, Part 1 (detailed fees) you should use the work items that have been designed specifically for those cases.
In addition, there is also provision to pay for “exceptional research”.
Legal research is not usually allowable on assessment because solicitors carrying out work are assumed to have sufficient expertise in the relevant areas of law in which they practice and researching the law is not ordinarily specific to the immediate matter or case in hand. As such it will often be considered as part of the overheads of the solicitor in developing their own knowledge of that area of law.
However, Paragraph 17 of the Notes on the operation of Schedule 1A, allows for the payment of detailed fees for time spent in researching a novel, developing or unusual point of law but only where the following conditions are met. That is:
the Board considers that the circumstances of the case are exceptional, whether or not we have made a determination under regulation 7A (solemn proceedings (exceptional) fees) or the work is already chargeable by way of detailed fees (for example, the research relates to a procedural appeal);
the research required in the case, in the opinion of the Board, goes beyond the understanding of the substantive and procedural law expected of solicitors in accordance with regulation 10A.
As the provision specifies it is a matter for the Board to determine whether both of those tests have been met.
An example where exceptional research may apply is where there is very little or no previous case law and it has been necessary to consider English or European case law to formulate any submissions being made to the court.
It is recommended that you make an application to us before the work has been done as this will avoid difficulties at the accounting stage. Applications should be made to the Accounts Specialists and should be sent by email. You can find more details in our legal aid guidance section.
Solemn proceedings (exceptional) fees
Finally, Regulation 7A of the Criminal Fees Regulations makes provision for detailed fees, where the Criminal Applications Department approve the case as exceptional, in circumstances where an assisted person would otherwise be deprived of the right to a fair trial in a case because of the amount of fees payable to the solicitor in accordance with Schedule 1A, Part 2.
Where that arises no block fees are allowed and all fees are calculated in accordance with Part 1 of the Table of Fees (detailed fees). This applies even where there is a transfer of solicitor and in such cases all solicitors must charge on the basis of detailed fees.
Paragraph 4 of the Notes on the operation of Schedule 1A, prescribes fees which are not chargeable in a case. For example:-
making a telephone call that is not answered;
where more than one solicitor attends a meeting with the client, without the prior approval of SLAB
The full list as specified in paragraph 4 is not intended to be an exhaustive list of work items that are not chargeable. An assessment officer has discretion to disallow charges where they do not appear to be reasonable based on the information available.
Work which cannot be charged separately as a fee or outlay
Work which cannot be charged separately as a fee or outlay
Paragraph 5 of the Notes on the operation of Schedule 1A, makes clear that that the fees payable under Part 2, includes all of the following work carried out in relation to the case and no further claim may be made in relation to that work (whether such work is done by the nominated solicitor or by any other party):
the taking, drawing, framing and perusal of precognitions
the undertaking by a solicitor of any part of the work; and
Where a solicitor instructs another solicitor to attend court they should charge for the time engaged at court as if they had undertaken that work.
Where any agency solicitor is instructed to attend court it should be an agent as close to that court as is reasonably possible.
If an application for exceptional fees is granted the work listed can be charged on the basis of the detailed fees for that work as prescribed in Part 1 of Schedule 1A, subject to the usual tests of reasonableness.
The fees that are payable in a case is determined by the most serious offence being prosecuted against the assisted person and the court in which the proceedings are prosecuted. It is based on the offences which are libelled in the indictment which has been served. That reflects how the pre-reform fees also operated so hopefully you are all familiar with how this operates.
It is important to note that the category is determined by the most serious offence against the accused for whom you act and not necessarily the proceedings. For example, if any co-accused is being prosecuted for a category A offence (for example, murder) but your client is being prosecuted on a category B offence (for example, assault) you can only claim fees at category B rates.
For proceedings in the High Court of Justiciary which relate to an offence listed in Schedule 2, Part I, Chapter 1:
Paragraph 3(a) of Schedule 2, column A of Schedule 1A, Part 2 applies; and
Paragraph 3(b) or (c) of Schedule 2, column B of Schedule 1A, Part 2 applies.
All proceedings in the sheriff court are chargeable at column C.
If you are uncertain what category applies to your case the offences are listed in Schedule 2 which is the Table of Fees for Counsel. Schedule 2 has three separate categories of offence in the High Court for Counsel but for solicitors the list of offences in category B and C have been combined into a single category B.
When the case is indicted to the High Court it is important that prior to the case concluding that you contact our Criminal Applications Department so that they can amend the court from Sheriff Court to High Court. You will not be able to charge at High Court rates until that has been done.
Proceedings where no indictment is served
Paragraph 7 of the Notes on the operation of Schedule 1A, makes provision for certain offences to be paid at category A High Court fee levels in circumstances where no indictment is served. Those offences are:
multiple attempted murder
rape or an offence under section 1, 2, 3(2)(a) or any of sections 18 to 27 of the Sexual Offences (Scotland) Act 2009
assault and robbery involving commercial premises
importation of controlled drugs
an offence under section 1 (causing death by dangerous driving); section 3A (causing death by careless driving when under the influence of drink or drugs) or 3ZB (causing death by driving while unlicensed or uninsured) of the Road Traffic Act 1988 Act
an offence under the Explosive Substances Act 1883
a firearms offence
an offence under the 2000 or 2006 Terrorism Act; and
an offence under section 1 or 4 of the Human Trafficking and Exploitation (Scotland) Act 2015.
However, in any case where the solemn petition is ultimately reduced to summary proceedings you can only charge on the basis of column C Sheriff Court.
Offences which are not categorised
Where the proceedings relate to an offence in the High Court which is not listed under Schedule 2, the offence will be payable based on the category that SLAB, or in the event of any dispute the auditor, considers appropriate having regard to all the circumstances.
Where the proceedings are not listed but the case is indicted to the sheriff court the fees under column C are payable.
Solicitor acting for two or more persons in the same case
Solicitor acting for two or more persons in the same case
Regulation 4(2), of the Criminal Fees Regulations clarifies that where a nominated solicitor represents two or more persons charged in the same indictment or complaint, or appealing against conviction or sentence in respect of the same indictment or complaint they shall submit one account in respect of all those persons.
However, we will allow two separate accounts in circumstances where the co-accused is transferred to another solicitor in a case which commenced before 29 April 2023, but concludes thereafter and you are exercising your right to submit one account under Schedule 1A, Part 2 and the other account under Schedule 1, Parts 1 and 2.
The provision of a single account allows us to better understand how each client’s case progresses and then reach an informed view as to what, if any, work should be apportioned in the particular circumstances of the case.
The fees regulations do not prohibit in solemn cases the charging of separate block fees for each accused under Schedule 1A, Part 2.
However, while there is no specific provision within the regulations on the matter of modification we will continue to exercise our discretion, standing the statutory tests of taxation that solicitors must conduct cases with due regard being had to economy and to only allow for payment of reasonable fees to modify any block fee where, based on the information available, it appears reasonable to do so.
This would be particularly relevant where charges gave rise to the potential for double agency which is contrary to what is the almost universally accepted principle that you cannot be paid twice for doing the same work where the business or work done is common to more than one client.
For example, where the same disclosed material is made available by the Crown in respect of each accused or you attend a single hearing dealing with both clients a single payment will ordinarily be allowed for that work.
Where you are making a claim for more than one accused you should use the “co-accused block fee” work items where appropriate.
Solicitor acting for a person on more than one matter where the petitions are 'rolled up' into one indictment
Solicitor acting for a person on more than one matter where the petitions are ‘rolled up’ into one indictment
In such cases our approach to assessment is that we consider each petition to be separate and distinct until such time as the cases are rolled up into one indictment but from that point on, only one claim should be made.
Any block fees incurred in each case prior to the cases being rolled together can feature on each account subject to the usual test of reasonableness.
A preparation fee under paragraph 5(c) will ordinarily be chargeable for the ‘rolled-up’, less substantive matter under the relative grant of legal aid as that petition has essentially been ‘disposed of by… means’ other than by proceeding to trial or by way of a hearing under s76 of the 1995 Act. A second preparation fee for the conjoined matters under the grant of legal aid for the substantive matters will be allowed depending on whether the indicted case proceeds to trial or is disposed of by means other than trial or by way of a hearing under s76 of the 1995 Act.
If the case is indicted to the High Court and features charges that appear on both petitions you are entitled to charge for both cases at the applicable rates that would apply in the High Court.
For example, if you have two grants of solemn legal aid and the first grant relates to a charge of murder (category A), and the second stems from a charge of assault (category B) and both charges are rolled into one indictment the account in respect of the assault charge would be chargeable at column ‘B’ High Court rates and murder at column A High Court rates.
Petition or Full Committal Fee
Petition/Full Committal Fee
The Petition or Full Committal Fees are prescribed in Schedule 1A, Part 2, Paragraph 1.
This fee covers all work done during that stage of the proceedings except where a fee is prescribed in paragraph 2 (bail appeal) or in paragraphs 7-11 (court related work and travel), from the taking of initial instructions up until the client is admitted to bail or committed until liberated in due course of law:
Paragraph 1(a) is payable – where at the first examination the client is either— not committed for further examination; or committed for further examination and admitted to bail.
Paragraph 1(b) is payable – in any other case.
The higher fee in paragraph 1(b) is to reflect the additional work a solicitor will normally require to undertake in advance of the full committal hearing where the client has not been admitted to bail at the first examination.
Only one fee is chargeable in any case.
This fee largely reflects how solemn fees have been paid for the initial appearances for many years. However, the one significant difference under these revised payment arrangements is that where a bail appeal takes place during this stage of proceedings a fee for a bail appeal can now be charged for in addition to this fee.
Bail Appeal Fee
Bail Appeal Fee
The fee for a Bail Appeal is prescribed in Schedule 1A, Part 2, Paragraph 2.
The fee covers all work in connection with a bail appeal hearing including any continued diet and, where necessary, instructing Edinburgh agents. It includes, where appropriate, any Crown bail appeal.
This fee is only payable in respect of a bail appeal under section 32 of the 1995 Act, or an appeal under section 201(4) of the 1995 Act, where the accused has been convicted and court have adjourned the case before sentence or otherwise.
The fee is payable for each separate and distinct bail appeal and more than one fee can be claimed, where appropriate, in any case. The fee is chargeable even where it takes place during the period covered by block fee 1 (petition or full committal fee).
This fee is not chargeable in connection with any bail reviews under section 30 or 31 of the 1995 Act although you can, of course, continue to charge separately for the court work including, where appropriate, any waiting and travel time in relation to any bail reviews.
Counsels fees (which includes solicitor advocates fees, where appropriate) are payable separately where they are instructed to attend any bail appeal hearing.
The new fee for Communications is prescribed in Schedule 1A, Part 2, Paragraph 3.
The fee covers all forms of communications in the case including, but not restricted to, meetings, consultations, letters, telephone calls, etc. from the conclusion of the work in paragraph 1 (Petition/Full Committal) up to and including the commencement of any work for which a fee is payable under paragraph 6 (Post-Conviction).
Where the client is acquitted any communications post acquittal are included in the communication fee.
The fee is payable only once in any case.
When submitting your account you do not require to add individual work items for communications unless you are charging for work where separate detailed charges are allowed (for example, a procedural appeal, exceptional research or work in relation to proceeds of crime post-conviction).
There is no longer any provision to opt-out of any individual block fee. However, where you believe that your client would be deprived of the right to a fair trial because of the amount of fees payable under the block fees that are payable in the case you can still make an application to the Criminal Applications Department under the exceptional fees provisions. If your application is granted you (and any other solicitor who has acted in that case) must then charge on the basis of detailed fees under schedule 1A, Part 1.
Travel for prison visits or any other necessary travel charges associated with communications can be charged as separate work items, where appropriate.
The fees for perusal are prescribed in Schedule 1A, Part 2, Paragraph 4.
Perusal charges have been simplified with the aim of ensuring prompt payment without the need for a detailed explanation in support of each and every perusal charge in the case.
The manner in which fees for perusal are to be calculated are prescribed in paragraphs 10 & 11 of the Notes on the operation of Schedule 1A.
Perusal is calculated in tranches of 250 minutes or sheets, or part thereof, based on the:
for the first 250 sheets of documentation of separately chargeable sheets, and each subsequent 250 sheets,
for each 250 minutes of recorded video or audio material, of separately chargeable minutes, and
for each 250 minutes of other material, where separately chargeable.
A “sheet” is defined as consisting of 250 words or numbers.
Other material is defined in paragraph 20 of the Notes on the operation of Schedule 1A as “a minute of the actual time spent perusing any documentation or material covered in that paragraph in a manner appropriate in all the circumstances of the case”.
It is intended as a means to ‘catch-all’ other documentation that will require to be perused in the case but which is not easily measured by way of sheets or minutes. You must charge for that perusal based on the time that has been actually and reasonably engaged.
Other material could include the perusal of a telephone report which often contains a mix of different types of material including text, audio or social media messages, video content, photographs, metadata, etc. or a labelled production such as a knife, car etc.
In most cases when you are making a claim for perusal all that you require to provide is the aggregated total of separately chargeable sheets and minutes that you have perused in that case.
However, where you include a charge in respect of “other material” as this is based on the actual time engaged you must provide a narrative in support of those charges explaining what you have perused and the time engaged. The narrative must be sufficient to justify the time engaged.
Where there is more than one type of disclosed material
Where the disclosed material is a combination of statements etc. (payable on the basis of sheets considered), audio/video (payable on the basis of runtime), and other material (payable on the basis of reasonable time engaged), your fee must be calculated on the basis of the aggregate total of sheets, minutes of audio/video runtime and minutes reasonably engaged, payable per tranche of 250 or part thereof. For example, if you have 300 sheets or minutes of separately chargeable perusal in the case you will be entitled to charge for two blocks of perusal as the aggregate total is more than 250 but less than 501 sheets or minutes.
Where disclosure exceeds 50,000 sheets or minutes
In cases where the amount of disclosure exceeds 50,000 sheets or minutes the first 50,000 sheets or minutes are payable at the full prescribed rate in the Tables of Fees, and each tranche of 250, or part thereof, in excess of 50,000 will be payable at 50% of the prescribed rate.
The reference to separately chargeable perusal
The reference to separately chargeable perusal is to emphasise that a certain amount of perusal is included in the preparation or disposal fee that you will be entitled to charge in the case. You are still being paid for those perusal charges but not by way of a separate perusal charge.
It is essential that when you make a claim for perusal that you restrict this to the balance of perusal excluding the amount that is already included in the preparation or disposal fee that you will be paid in the case under paragraph 5. Our system does not automatically deduct the respective volume of perusal which is included in the preparation fee. That volume is:
The first 50 sheets, minutes or labels are included in the preparation fee under paragraph 5(a) case proceeds to trial or 5(c) disposed of by means other than a hearing under s76 of the 1995 Act; or
The first 1,000 sheets, minutes or labels are included in the preparation fee under paragraph 5(b) where the case is disposed of by way of a hearing under section 76 of the 1995 Act.
For example, in a case where you have a total of 300 sheets and minutes of material when you are making your claim you should only enter “250” where you are prompted to enter the “Total number of chargeable perusal” in any case which proceeds to trial or is disposed of by means other than s76, as the first 50 sheets and minutes are included in the preparation fee.
Where the case is disposed of by way of a hearing under section 76 of the 1995 Act, no claim should be made for any perusal as the enhanced preparation fee for a s76 disposal includes the first 1,000 sheets and minutes.
Where a perusal fee is claimed:
the fee payable is calculated on the basis of the documentation which has been actually and reasonably considered, due regard being had to economy;
the fee is only payable if the Board, or as the case may be the auditor, is satisfied that:
the level of perusal was necessary, reasonable and proportionate in all the circumstances of the case, and
there has been due regard to the manner of perusal and reasonably available tools and aids;
There is no definition of ‘tools and aids’ but it is to emphasise that where those exist they must be used. For example, where the disclosed material consists of one or more MS Excel spreadsheets the perusal should not be calculated based on the number of sheets but the actual time reasonably engaged interrogating and analysing that data by using the tools and aids available within Excel standing your obligation to conduct the case with due regard to economy.
Requirement to provide contemporaneous records where required
Although we expect this will be unnecessary in the vast majority of cases you must, where requested, provide-
a detailed summary of the nature of the work or, if applicable, the nature of the documentation perused, at each stage of the process, the time taken and when and where the work was undertaken, and
retain, and if requested produce, any contemporaneous record or notes made in the course of the perusals.
Although for the purposes of the accounting we will almost certainly not require the same level of information in support of perusal charges as we previously did when charges were based on detailed fees the new payment arrangements do not alter your requirements to keep detailed records in terms of the Code of Practice for Criminal Legal Assistance.
Transfer of solicitor
A reminder that in a case where there is a transfer of solicitor the perusal fee is generally payable to each solicitor based on the aggregated sheets and minutes they have actually and reasonably perused except where the transfer takes place post-conviction and the work is in relation to confiscation proceedings.
This should provide the necessary flexibility to the incoming solicitor to “read in” to the case in order to provide appropriate advice to the client and prepare the clients defence.
However, it should be noted that our approach to assessment is to allow a single perusal charge where there is an internal transfer of solicitor within the firm mindful that the solicitor and firm should be conducting that case with due regard being had to economy and the level of perusal allowable must be necessary, reasonable and proportionate in all the circumstances of the case.
Payment will only be made more than once where there is a change of nominated solicitor and firm. If for example, the case was transferred from solicitor A to solicitor B and back to solicitor A, solicitor A (being the same solicitor) would not be entitled to two separate perusal payments. Only one fee would be payable to solicitor A based on the total volume of distinct material which has been disclosed in the case.
Perusal included in the preparation fee to be apportioned equally
Where there has been a transfer of solicitor we also expect each solicitor to discount an equal share of the amount of perusal that is included in the preparation fee payable in the case.
if there were 2 solicitors each solicitor should deduct 25 sheets/minutes from their perusal claim in any case which proceeds to trial or is disposed by means other than by way of a hearing under s76 of the 1995 Act (mindful that those preparation fees includes the first 50 sheets/minutes); and
if there were 2 solicitors each solicitor should deduct 500 sheets and minutes from their perusal claim in any case which is disposed by way of a hearing under s76 of the 1995 Act (mindful that preparation fee includes the first 1,000 sheets/minutes).
The fees for preparation are prescribed in Schedule 1A, Part 2, Paragraph 5.
Paragraphs 12 & 13 of the Notes on the operation of Schedule 1A clarify when and how the fee is chargeable. The preparation fee includes:
The first 50 sheets, minutes or labels where a preparation fee under paragraph 5(a) case proceeds to trial or 5(c) disposed by means other than a hearing under s76 of the 1995 Act is chargeable; or
The first 1,000 sheets, minutes or labels where the case is disposed of by way of a hearing under s76 of the 1995 Act
Only one preparation fee can be claimed in any case. A preparation fee will be chargeable in every case which extends beyond the work covered by block fee 1 (petition or full committal fee). It is an all-encompassing fee that covers all work done in the case except where a fee is otherwise prescribed.
No preparation fee is payable until the case to which it relates has concluded.
Preparation fee under 5(a) – case proceeds to trial
Where the case proceeds to trial the fee is chargeable even where the case is not actually disposed of at trial. For example, if a warrant was subsequently issued after the trial had started or on the day trial was set to commence the trial preparation fee can still be claimed. It is also payable in any case where the case is disposed of at trial, including on or after the day fixed for trial, the Crown withdraws any libel against the client, or a lesser plea is accepted by the Crown on the day the case has been brought to trial.
Preparation Fee under 5(b) – disposed of by way of a hearing under s76 of the 1995 Act
The s76 preparation fee is not the only fee that is chargeable in the case. You are entitled to charge for all other relevant block fees and time based fees for travel and time engaged at court in addition.
Preparation Fee under paragraph 5(c) – the case is disposed of by any other means
This is intended to be a `catch-all` for every other case including cases which are reduced to summary proceedings, a plea is accepted before trial, where there are no further proceedings, etc.
The preparation fee payable under paragraph 5 will generally be determined by how proceedings are finally disposed of in that case except where—
a diet has been deserted pro loco et tempore; or
a trial diet does not proceed and the procedure in section 81 of the Criminal procedure (Scotland) Act 1995 is followed;
and those proceedings are covered by an existing grant of legal aid.
Following desertion pro loco et tempore after trial you can claim the fee payable under paragraph 5 of Part 2 of the Table of Fees either on the basis of the prior indictment or the final disposal.
For example, if the case proceeds to trial on the prior indictment but the case is disposed of prior to trial on the fresh indictment you can still claim the trial preparation fee. This provision ensures that you will always have the option to charge the highest preparation fee that is available in that case.
Post Conviction Fee
The fees for post-conviction work are prescribed in Schedule 1A, Part 2, Paragraph 6.
The fee covers all work in connection with post-conviction discussions, including advising and giving an opinion on the prospects of any appeal.
The fee is payable only once in any case.
It is only chargeable where the client is convicted.
It is not chargeable in any other case and discussions and advising a client otherwise are included in the fees payable under block fee 1 (Petition/Full Committal) or block fee 3 (communication fee) as the case may be.
Work in relation to proceeds of crime post-conviction can be charged for separately on a detailed basis but work in relation to any other heads of work that may be necessary cannot and any such work is included in the general fees that are payable in the case.
However, all court related work or travel can still be claimed separately, where appropriate.
Time based charges at court for conduct, waiting and behind counsel
Time based charges at court (conduct, waiting and behind counsel)
The fees under paragraphs 7 (conduct at court), 9 (where counsel conducts the hearing), 10 (time spent waiting at court) and 11 (travel) are payable on the basis of the aggregate actual time engaged on the case, per day.
The fees under Schedule 1A Part 2 has introduced a higher rate of payment where a solicitor conducts a hearing or where the solicitor is sitting behind counsel at court in comparison to the pre reform Table of Fees or where those fees are chargeable on a detailed basis under Schedule 1A Part 1.
There are now three distinct fee rates for time spent at court depending on whether that work relates to:
conduct by a solicitor
where a solicitor or unqualified assistant sits behind Counsel who conducts the hearing; and
waiting time spent at court.
The provisions as to how waiting time requires to be charged is set out in paragraph 15 of the Notes on the operation of Schedule 1A.
A fee for time spent waiting is chargeable only for time necessarily spent waiting at court for a hearing, provided that time has not been occupied in connection with another case (whether legally aided or not). It is not chargeable in any other situation. For example, if you require to wait at prison no fee can be claimed for any time spent waiting.
Waiting time should be charged to the first case calling except in circumstances where the time spent waiting is in respect of multiple attendances for the same person. In such cases, the waiting fee should be apportioned equally between each of the relevant cases (whether the cases are legally aided or not).
No waiting time is chargeable in respect of the period of time during the court’s lunch break.
Holiday Court Supplement
A supplementary fee is payable under paragraph 8 in addition to the fee for conduct, where at a holiday court sitting a solicitor acts for a person appearing from custody on the day on which that person is first brought to a court to attend a first examination.
That ‘holiday court supplement’ is not payable in any other case.
The fees in respect of travel are prescribed in paragraph 11, and are payable on the basis of the aggregate actual time engaged on the case, per day.
The provisions as to how travel time requires to be charged is set out in paragraph 16 of the Notes on the operation of Schedule 1A.
A fee for travelling time is chargeable only for time necessarily spent travelling to and from:
(a) court, provided that:
a fee is chargeable for the work undertaken at the court; and
the court is not in a town or place where the solicitor has a place of business;
Travel time can also be charged, where reasonable, for:
(b) a meeting with the client
in prison; or
elsewhere, if the client is unable to travel on medical grounds.
(c) a meeting with the Procurator Fiscal or Advocate Depute at their office;
(d) a consultation with counsel or an expert witness provided that, where necessary, prior approval to engage their services has been obtained from SLAB;
(e) a locus inspection;
(f) an examination of productions.
Where a fee for travelling time is claimed no additional fee may be claimed in respect of any work done during that time spent travelling.
A fee for travelling time is also chargeable in circumstances other than any of those specified in paragraph 16(1) of the Notes on the operation but only if SLAB, or in the event of a dispute the auditor, is satisfied that it was necessary for the advancement of the case that the solicitor be physically present at the place travelled to.
A fee for travelling time is not chargeable if it would have been more economical to use a local solicitor, unless it was reasonable in the interests of the client that the nominated solicitor, or a solicitor assisting the nominated solicitor in terms of regulation 4(3) of the Criminal Fees Regulations, attended personally. Where a local agent is instructed it should be an agent as close to that court as possible.
The fee chargeable for travelling time is the fee for time necessarily spent travelling divided by the number of cases (whether legally aided or not) in connection with which the travel was undertaken.
For example, if you travel a total of 40 minutes for 2 cases the fee will be based on a total travel time of 45 minutes (40 minutes rounded up to the next quarter hour of chargeable time) divided by the 2 cases. You cannot charge 20 minutes (which when rounded up to the next quarter hour of time would be 30 minutes) in each case as that exceeds the fee payable for the actual time spent travelling.
Travel is chargeable in line with normal commercial practice from the place of business or employment of the person travelling to the relevant location, except where travel:
commences from or concludes at that person’s place of residence (or both commences and concludes at that place), and
is of a shorter distance than travel to the relevant location from their place of business or employment would have been.
When making a claim in respect of travel you should ensure that you use the “travel to court” option where appropriate in order that all of the time spent at court is aggregated correctly.
For all other travel times you should provide a brief commentary clarifying the purpose of the travel to allow us to determine the reasonableness of the charge.