Shelagh Mccall V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Carloway |
| Neutral Citation | [2005] CSOH 163 |
| Published date | 29 November 2005 |
| Date | 29 November 2005 |
| Court | Court of Session |
| Year | 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 163 | |
| OPINION of LORD CARLOWAY in the petition of SHELAGH McCALL Petitioner against THE SCOTTISH MINISTERS Respondents for Judicial Review of a decision of the respondents to adopt the Criminal Legal Aid (Scotland)(Fees) Amendment Regulations 2005 (SSI No 113) ________________
|
Petitioner : Keen QC, DEL Johnston QC; Henderson Boyd Jackson
Respondents: Wolffe; Solicitor to the Scottish Executive
29 November 2005
- The Regulations
[1]The Legal Aid (Scotland) Act 1986 (c.47) provides:
"4(1)The [Scottish Legal Aid] Board shall establish and maintain a fund to be known as the Scottish Legal Aid Fund...
(2) There shall be paid out of the Fund
(a)such sums as are, by virtue of this Act or any regulations made
thereunder, due to any...counsel in respect of fees...in connection with the provision...of legal aid...
33(1)...any counsel...who acts for any person by providing legal aid...shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees...
(2)The [respondents] may, by regulations made under this section, make such provision as seems to [them] appropriate in respect of the fees...of...counsel-
(a)acting in any proceedings for a person to whom legal aid has become
available...
(3)...regulations made under this section may -
(a)prescribe the work in respect of which fees may be charged;
(b)prescribe rates or scales of payment of fees...allowable and the
conditions under which such fees may be allowed..."
Section 32 prohibits counsel from receiving any additional payments in legal aid cases.
[2]The Criminal Legal Aid (Scotland) (Fees) Regulations 1989 (SI No 1491), in its unamended form, provided:
"10(1) Counsel shall be allowed such fee as appears to the auditor to represent reasonable remuneration, calculated in accordance with Schedule 2, for work actually and reasonably done, due regard being had to economy."
Schedule 2, as it was then formulated, stated :
"FEES OF COUNSEL
1....fees shall be calculated in accordance with the Table of Fees in this
Schedule.
2.Where the Table of Fees in this Schedule does not prescribe a fee for
any item of work the auditor shall allow such fee as appears to him appropriate to provide reasonable remuneration for work with regard to all the circumstances, including the general levels of fees in the said Table of Fees.
3.The auditor shall have power to increase any fee set out in the Table of
Fees in this Schedule where he is satisfied that, because of the particular complexity of the work or any other particular circumstances, such an increase is necessary to provide reasonable remuneration for the work..."
These provisions, especially that in regulation 10(1), were intended to restrict what had been a much freer hand allowed to the Auditor in fixing reasonable fees under the pre-existing, and relatively simple, non-statutory table of fees. The descriptions of the work in that table, for which specific fee levels were set, had originally been drafted to meet conditions prevalent in the 1970s. However, the Table of Fees in the Schedule to the Principal (1989) Regulations took an almost identical form, other than in the rates payable. Thus, it set daily trial and consultation rates in the various High Court circuit towns and sundry figures for work done in connection with the drafting of appeal documents and appearing at appeal diets. For example, the daily rate for junior counsel appearing on his own in Aberdeen was £330.50 and, for an appeal against conviction, the fee was set at £196.50 per day. The odd amounts reflected percentage inflationary increases from the previous non-statutory figures. The Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1992 (SI No 1491) substituted the Table of Fees in the Schedule to the Principal (1989) Regulations by increasing the rates, but leaving the descriptions of the work materially unchanged. The Aberdeen trial and the appeal rates for junior counsel increased to £408.50 and £242.50 respectively. The Amendment (1992) Regulations provided (regulation 5) that they would "apply only to fees in relation to proceedings concluded on or after" the commencement date of 1 April 2002. This provision was similar to that used to introduce the Principal (1989) Regulations. It was also the style employed to commence the Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 1990 (SI No 1035) and 1991 (SI No 566).
[3]After 1992, the Table of Fees remained essentially untouched for some thirteen years. Despite protestations, the rates were not increased, even to keep up with inflation. The descriptions of the work remained unaltered, although there were considerable changes in the practice and procedure of the High Court since they were first formulated in the 1970s. The changes included a substantial increase in the number of formal appearances at trial diets at which uncontested motions for adjournments were made for a variety of reasons. They also included a proliferation in miscellaneous diets allocated to hear sundry applications relating to devolution issues, measures to protect witnesses, commissions to take or to recover evidence and similar matters. There had also been alterations in the mode of preparation for trial, especially in relation to the number of, and time taken for, consultations and the examinations of loci and productions. Furthermore, over some years there had been a demand from the Faculty of Advocates to move to a graduated fees system, which would allow for greater differentiation in daily trial rates, depending upon the nature of the case and the experience of counsel instructed. It was thought that the simple difference between the rates for junior and senior counsel was an inadequate way of assessing a reasonable fee, especially for a junior counsel taking on more or less serious cases on his own or as the leading counsel. .
[4]The upshot of all this was that, perhaps even when it was introduced, there was a perception in some quarters that the Table of Fees did not provide an equitable basis for calculating reasonable fees for many pieces of work, notably those specifically provided for. As already observed, in relation to the wording of regulation 10(1), the ability of the Auditor to fix what he considered to be a reasonable fee was limited by the need to calculate "reasonableness" in accordance with the rates in the Table. Where a rate was specified, it could only be increased if there were a particular complexity or circumstance. As a result of the perceived inequities, and presumably having regard to the practical difficulties which then followed, over time it became commonplace for the Scottish Legal Aid Board to allow fees above, and in some cases well above, the rates in the Table. In relation to pieces of work not specified in the Table, the levels which came to be acceptable differed substantially from those included in the Table for near equivalent work. Of particular significance, it became possible for counsel to charge for and to be paid for preparation time, even although the rates in the Table had been intended to be inclusive of that element. As it is succinctly put in the respondents' answers:
"If a payment higher than that specified in the Table of Fees were to be justified by reference to the amount of preparation undertaken by counsel, this might be allowed for by payment of a daily rate higher than the specified rate or by payment of the specified daily rate plus a payment for preparation or by both a higher daily rate plus a separate preparation payment. There was uncertainty as to the fee which would in fact be paid for any particular item of work. There required to be negotiation on a case by case basis. These circumstances delayed the agreement and settlement of counsel's fees...Over time there was significant inflation in the amounts being paid. The system had come to lack transparency and certainty. It was widely recognised that amendment or replacement of the old Schedule was overdue."
[5]Negotiations between the Faculty and the Board on a new graduated fee structure had been ongoing for some time. These took on an added impetus in the later months of 2004, when the potential impact of the forthcoming reforms to the procedure of the High Court proposed by Lord Bonomy was coming to be recognised. The reforms would introduce preliminary hearings as a central element, together with a system of fixed and floating trial diets, all intended to stop the so called churning of cases by repeated adjournments. For the reforms to work, it was essential that an appropriate fee structure were put in place. By September 2004, the negotiations had begun to encompass not simply a graduated fee structure but the new reforms. For the Faculty, the negotiations were being conducted by two senior counsel practising primarily in the High Court. Part of their concerns was to achieve, so far as possible, a fixed fee structure for trials, which would create greater certainty in fee charging with a consequent improvement in cash flow. It was the Board's understanding that this was what was desired by counsel generally. Put slightly differently, it came to be accepted that counsel might be prepared to sacrifice, at least to a degree, the high level and type of some fees, which had come to be expected under the existing scheme, for increased certainty of levels and prompt payment.
[6]The first full draft of what were to become the Criminal Legal Aid (Scotland)(Fees) Amendment Regulations 2005 (SSI No 113) seems to have emerged at the end of December 2004. The whole Schedule to the principal Regulations was to be replaced with the following:
"1. ...fees shall be calculated by the Board, and in the event of a question
or dispute by the auditor, in accordance with the Table of Fees in this Schedule.
2.Where the Table of Fees does not prescribe a fee for any item of work the Board, or as the case may be...
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