Civil Legal Aid (Scotland) (Fees) Regulations 1989
| Jurisdiction | UK Non-devolved |
| Citation | SI 1989/1490 |
1989 No. 1490 (S.119)
LEGAL AID AND ADVICE, SCOTLAND
The Civil Legal Aid (Scotland) (Fees) Regulations 1989
Made 14th August 1989
Laid before Parliament 17th August 1989
Coming into force 31th August 1989
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 19861, and of all other powers enabling him in that behalf, hereby makes the following 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 31st August 1989.
Interpretation
2.—(1) In these Regulations, unless the context requires—
“auditor” means—
(a) in relation to proceedings in the Court of Session, Lands Valuation Appeal Court, House of Lords, Restrictive Practices Court 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;
“outlays” does not include fees of counsel.
(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.
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) These Regulations shall not apply to the fees and outlays recoverable 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, and where accounts of such fees and outlays are taxed they shall be taxed as if the work done for that person were not legal aid.
Fees and outlays allowable to solicitors
4. 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.
(a)
(a) (2) 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)
(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)
(c) fees for sequestrations in bankruptcy (other than summary sequestrations) or proceedings under the Social Work (Scotland) Act 19682shall 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 House of Lords, Restrictive Practices Court, Employment Appeal Tribunal, Lands Valuation Appeal Court, Scottish Land Court or Lands Tribunal for Scotland shall be calculated in accordance with Schedule 3.
(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)
(a) the complexity of the proceedings and the number, difficulty or novelty of the questions involved;
(b)
(b) the skill, specialised knowledge and responsibility required of and the time and labour expended by the solicitor;
(c)
(c) the number and importance of the documents prepared or perused;
(d)
(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)
(e) the importance of the proceedings or the subject matter thereof to the client;
(f)
(f) the amount or value of money or property involved; and
(g)
(g) 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.
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.
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.
10.—(1) Counsel’s fees in relation to proceedings in the Court of Session shall be calculated in accordance with Schedule 4.
(2) Counsel’s fees for any work in relation to proceedings in the sheriff court, House of Lords, Restrictive Practices Court, Employment Appeal Tribunal, Lands Valuation Appeal Court, Scottish Land Court or Lands Tribunal for Scotland 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.
Payments to account
11.—(1) A solicitor acting for, or counsel instructed on behalf of, a person receiving civil legal aid may...
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