Bovey, Noter
| Jurisdiction | Scotland |
| Judgment Date | 21 January 2021 |
| Neutral Citation | [2021] CSIH 3 |
| Docket Number | No 12 |
| Court | Court of Session (Inner House) |
[2021] CSIH 3
Extra Division
Geddes v Lothian Health Board CSIH, 17 February 1993, unreported
Haddow, Noter CSOH, Lord Arthurson, 6 July 2018, unreported
MEJ, Petr CSOH, Lady Carmichael, 17 March 2020, unreported
McCall v Scottish Ministers [2005] CSOH 163; 2006 SC 266; 2006 SLT 365
O'Neill and Davidson, Noters [2010] CSOH 79; 2011 SCLR 143; 2010 GWD 29-602
Wightman v Advocate General for Scotland [2018] CSIH 18; 2018 SC 388; 2018 SLT 356; 2018 SCLR 588
Expenses — Legal aid — Counsel's fees — Whether counsel entitled to additional fee for preparation for permission hearing in statutory appeal — Whether auditor had applied an appropriate methodology in calculating assessed fee — Civil Legal Aid (Scotland) (Fees) Regulations 1989 (SI 1989/1490 (S 119)), sch 4
The Scottish Legal Aid Board disputed fees claimed by senior counsel for work carried out in connection with an application for permission to appeal a decision of the Upper Tribunal (Immigration and Asylum Chamber). The matter was referred for taxation by the Auditor of the Court of Session under reg 12 of the Civil Legal Aid (Scotland) (Fees) Regulations 1989. Senior counsel lodged a note of objections to the auditor's report.
Schedule 4 to the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (SI 1989/1490 (S 119)) provides, inter alia, “(1) Subject to the following provisions of this Schedule, the fees of counsel shall be calculated by the Board, or in the event of dispute by the auditor, in accordance with the fees prescribed in the Tables of Fees set out after paragraph 17 to this Schedule. … (3) Where the Tables of Fees in this Schedule do not prescribe a fee for any class of proceedings or any item of work, the Board, or as the case may be, the auditor, shall allow such fee as appears to be appropriate to provide reasonable remuneration for the work with regard to all the circumstances, including the general levels of fees in the Tables of Fees. (4) Subject to paragraphs 5 to 7, the fees prescribed in the Tables of Fees in this Schedule include all associated preparation work. (5) Subject to paragraph 6, an additional fee for preparation shall only be allowed if it relates to a proof, debate or like hearing” and certain further conditions are met.
The noter was instructed as senior counsel for the applicant in an application for permission to appeal to the Inner House against a decision of the Upper Tribunal (Immigration and Asylum Chamber). Legal aid was granted for the purpose of the application. The application was appointed to a hearing to determine whether permission to appeal should be granted under sec 13(4) of the Tribunals, Courts and Enforcement Act 2007 (cap 15). The noter spent in excess of 14 hours preparing for the hearing, which itself lasted three hours. The noter submitted a fee to the Scottish Legal Aid Board seeking payment of £1,500 plus VAT for the hearing and £1,000 plus VAT for preparation therefor. The Board disputed both charges. The matter was referred to the Auditor of the Court of Session for taxation.
The auditor ruled that the noter was not entitled to be paid for preparation for the hearing because that was precluded by para 4 of sch 4 to the 1989 Regulations and, in any event, a permission hearing did not satisfy the proof, debate or like hearing test in para 5 of sch 4. The auditor also accepted the Board's submission that the fee for the hearing itself should be abated to £487.50 plus VAT. The Tables of Fees in sch 4 contained a fee for appearance in the single bills by junior counsel. In the circumstances, junior counsel would have been entitled to charge £325 plus VAT. The Board considered senior counsel to be entitled to a fee of roughly 150 per cent of the fee for junior counsel and so made payment of £487.50 plus VAT. The noter lodged a note of objections to the auditor's report.
Held that: (1) there was nothing in the Table of Fees that corresponded with, or even approximated to, the class of proceedings or the item of work under consideration and so the noter was entitled to a fee assessed under para 3 of sch 4 to the 1989 Regulations (para 29); (2) the task for the Board or the auditor was to allow such fee as appeared to be appropriate to provide reasonable remuneration for the work, having regard to all the circumstances (paras 30); (3) where there was no dispute that preparation was carried out and was reasonably required, preparation would normally fall to be included in the assessment exercise under para 3 of sch 4 (para 31); (4) there was no basis for the methodology adopted by the auditor to calculate the fee due for the hearing given that it was based on a prescribed fee for junior counsel for a different item of work in proceedings not covered by the Table of Fees (para 35); (5) an additional fee for preparation was not precluded by para 5 of sch 4 because it only applied to prescribed fees and had no application to assessed fees (para 36); (6) even if para 5 of sch 4 had been applicable, the auditor had erred in accepting the Board's submission that a permission hearing could not satisfy the proof, debate or like hearing test under para 5 of sch 4 and, while not every permission hearing would satisfy that test, the auditor had erred in failing to consider it had been met in all the circumstances of the case (paras 37, 38); and note of objections sustained.
Observed that: it was an important element of the access to justice afforded to legally aided litigants that counsel of their choice should receive payment of a reasonable fee by the Board and that could not be achieved if the 1989 Regulations were to be interpreted in a manner which provided for payment of fees to counsel at an uneconomic level (paras 32, 33).
Geddes v Lothian Health Board unreported and MEJ, Petr unreported approved and Haddow, Noter unreported commented upon.
The note called before an Extra Division, comprising Lord Menzies, Lord Woolman and Lord Pentland, for a hearing, on 9 October 2020.
At advising, on 21 January 2021, the opinion of the Court was delivered by Lord Menzies—
Opinion of the Court—
[1] The issue in this case is the proper interpretation of sch 4 to the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (SI 1989/ 1490 (S 119)), and in particular how these should be applied to the fees of senior counsel for preparation and attendance at a hearing in the Inner House of the Court of Session on an application for permission to appeal to the Court of Session from the Upper Tribunal (Immigration and Asylum Chamber) in terms of sec 13(4) of the Tribunals, Courts and Enforcement Act 2007 (cap 15).
[2] By way of background, in 2016 the noter was instructed as senior counsel for the applicant in an application for permission to appeal to the Inner House against a decision of the Upper Tribunal (Immigration and Asylum Chamber), dated 17 May 2016. Legal aid was granted for the purpose of the application. The application was drafted and presented, and a hearing was appointed as to whether permission should be granted under sec 13(4) of the 2007 Act. That hearing called before a procedural judge in the Inner House.
[3] The noter prepared for and conducted the permission hearing. He spent in excess of 14 hours in preparation for the hearing, which itself lasted three hours. There was no dispute as to the time expended by senior counsel, nor was it suggested that the work described was not actually, or not reasonably, done.
[4] The noter submitted a fee to the Scottish Legal Aid Board (‘SLAB’) seeking payment of £2,500 plus VAT, namely £1,500 plus VAT for the hearing and £1,000 plus VAT for preparation therefor. This approximated to an overall rate of £147 per hour.
[5] SLAB disputed the noter's entitlement to be paid for preparation, and also the fee charged for the hearing itself. The matter was accordingly referred to the Auditor of the Court of Session in terms of reg 12 of the 1989 Regulations.
[6] By report dated 4 March 2020, the auditor ruled that (i) the noter was not entitled to be paid for preparation for the hearing, and (ii) the fee for the hearing itself should be abated to the sum of £487.50 plus VAT. This equates to an overall rate of less than £29 per hour.
[7] The Dean of Faculty explained that the matter raised questions of importance to the Faculty, and for access to justice in general, and that SLAB also accepted the general importance of the point. Permissions hearings in both Outer and Inner House were becoming more frequent, and it was argued that the Civil Legal Aid Regulations had failed to keep pace with current developments.
[8] The following passages of the 1989 Regulations are of relevance.
[9] Regulation 9:
‘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.’
Regulation 10(1) provides:
‘Counsel's fees in relation to proceedings in the Court of Session … shall be calculated in accordance with Schedule 4.’
Schedule 4 includes the following provisions:
‘1. Subject to the following provisions of this Schedule, the fees of counsel shall be calculated by the Board, or in the...
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