Note Of Objection By Aidan O'neill, Qc, To The Report Of The Auditor In The Taxation Of Counsel's Fees - Donald Birrell V. For Judicial Review And In Note Of Objection By Donald Davidson, Advocate In The Case Of Alan Pearson Ag J.ray Mcdermott Diving
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2010] CSOH 79 |
| Date | 25 June 2010 |
| Docket Number | P694/07 |
| Court | Court of Session |
| Published date | 25 June 2010 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH 79 | |
| P694/07 A1007/00 | OPINION OF LORD TYRE in NOTE OF OBJECTION by AIDAN O'NEILL, Q.C., Noter; To the Report of the Auditor in the taxation of counsel's fees in Legal Aid reference C7801588307 relative to the application of Donald Birrell (AP) for Judicial Review and in NOTE OF OBJECTION By DONALD DAVIDSON, ADVOCATE Noter; To the Report of the Auditor in the taxation of counsel's fees in Legal Aid reference C1/03/3019037 relative to the reclaiming motion in the case of Alan Pearson (AP) against J RAY McDERMOTT DIVING INTERNATIONAL INC ________________ |
For the Noters: Clancy, Q.C.,; Mackenzie; Balfour + Manson LLP
For the Minuters: Dean of Faculty; Hamilton; Faculty of Advocates
For SLAB: Crawford, Q.C., Scottish Legal Aid Board
25 June 2010
Introduction
[1] These two Notes of Objection raise an issue of general importance in relation to the remuneration of counsel for work carried out on behalf of a person receiving civil legal aid. They disclose a change of interpretation of the relevant regulations by the Auditor of the Court of Session, compared with that adopted by his predecessors. The effect of the change of interpretation in the present cases has been that the fees allowed to counsel following taxation were reduced to a level which, it is said, does not represent a reasonable fee for the work carried out. For his part, the Auditor considered himself bound by the decision of the High Court of Justiciary in The Scottish Legal Aid Board, Applicants 1999 SC 670 to adopt the approach that he has taken.
[2] The background to the Auditor's taxations can be briefly stated. The first Note of Objections concerns the fee allowed following taxation to Senior Counsel, Mr Aidan O'Neill QC, for work in connection with an application by Donald Birrell, a legally aided person, for judicial review of a decision by the Scottish Ministers to revoke his licence and recall him to custody. The application gave rise to novel and difficult issues of law that were regarded as having national importance. The petition was dismissed by the Lord Ordinary and a reclaiming motion was refused. Mr O'Neill sought a fee amounting in total to £22,400 for all work carried out in relation to the application. An offer of £14,200 by the Scottish Legal Aid Board ("the Board") was declined and the fee was referred to the Auditor for taxation. The Auditor taxed the fees at £5,492.80.
[3] The second Note of Objections concerns the fee allowed following taxation to Junior Counsel, Mr Donald Davidson, for work in connection with an action of reparation for personal injury by Alan Pearson, a legally aided person, against his employer J Ray McDermott Diving International Inc. Mr Davidson was instructed in a reclaiming motion against an interlocutor of the Temporary Lord Ordinary who had assoilzied the defenders after a 10-day proof. The grounds of appeal were wide-ranging and required a substantial amount of work by Mr Davidson who had not been involved in the case at first instance. After a hearing which lasted for six days, Mr Davidson having spoken for three days, the reclaiming motion was refused. Mr Davidson sought a fee amounting in total to £20,250 for all work carried out in relation to the reclaiming motion. Some items in the fee note were accepted by the Board; others were disputed. A global offer of £15,000 by the Board was declined and the fee was referred to the Auditor for taxation. The Auditor taxed the fees at £6,776.00. The disputed items were reduced from £17,900 claimed to £4,426.00 allowed.
[4] It will be readily apparent from this summary that the fees allowed to the Noters by the Auditor were significantly lower in each case than the sums that had previously been offered by the Board. These offers had been regarded by the Board as consistent with the approach to taxation adopted by the Auditor's predecessors, under which the fees allowed to counsel instructed on behalf of a legally aided person were "those expenses which a prudent man of business, without special instructions from his client, would incur in the knowledge that the account would be taxed". As discussed below, this is a well-established description of the basis of taxation known as "agent and client, third party paying". At the hearing I was provided with examples of previous taxations that followed this approach. Some, but not all, made express reference to the Table of Fees, discussed below, which is prescribed by regulations for civil legal aid work by counsel and which contains lower figures for fees than would be found due on taxation on an agent and client, third party paying basis. The present Auditor considered himself bound by the decision of the Court mentioned above to adopt a different approach. The principal issue raised by these Notes of Objection is whether he erred in law in forming that view.
[5] At the hearing before me, the two Noters, Mr O'Neill and Mr Davidson, were represented by the same counsel and it is common ground that the two Notes raise the same issues. The Dean of Faculty appeared on behalf of the Faculty of Advocates. His concern was that the fees had been taxed at a level which did not represent a reasonable fee and that in the absence of a reasonable fee counsel could not be obliged to accept instructions on behalf of a legally aided party. Such parties would therefore be deprived of their statutory right to select counsel of their choice and members of the public who rely on legal aid would be deprived of access to justice in the Court of Session. The Auditor was not represented at the hearing, but counsel appeared on behalf of the Board to provide a contradictor to the Notes of Objection and to support the approach taken by the Auditor. I am grateful to counsel for the Board whose submissions I have found of great assistance.
[6] The Auditor's Reports in relation to both taxations were issued on 30 March 2010. I was informed at the hearing that the Board have adjusted the level of their offers to counsel to take account of his decisions. The effect in general terms appears to be that significantly lower offers are now being made. Offers made by the Board prior to 30 March 2010 have been honoured provided they have not been disputed by counsel. Where, however, any abatements made by the Board have been challenged by counsel, the offer has been withdrawn and a revised offer made. I was provided with a number of illustrations of the difference. One example concerned a family law case in which both counsel acted for legally-aided parties. Counsel who submitted a fee note prior to issue of the Auditor's decision was offered £600 for a motion roll hearing and £1,150 per day for a diet of proof. Opposing counsel who submitted a fee note for similar work after issue of the Auditor's decision was offered £23.10 for the same motion roll hearing and £240.50 per day for the proof. Another example concerned counsel who respectively represented a mother and a father in an adoption case. Counsel whose fee was agreed prior to the Auditor's decision received £32,600. Opposing counsel has now been offered £17,550 for similar work. These examples were provided on behalf of the Noters but I understood it to be accepted that they were not atypical of the difference in level of offers being made by the Board in the light of the Auditor's decision.
The statutory provisions
[7] The primary legislative provisions are currently contained in the Legal Aid (Scotland) Act 1986 ("the 1986 Act"), which established the Scottish Legal Aid Board. Section 31 provides, so far as material, as follows:
"(1) ...A person to whom legal aid or advice and assistance is made available may select-
(a) the solicitor to advise or act for him; and
(b) if the case requires counsel, or a solicitor holding rights of audience by virtue of section 25 (rights of audience) of the Solicitors (Scotland) Act 1980, his counsel or such a solicitor,
and he shall be entitled to make the selection himself.
...
(2) Nothing in subsection (1) above shall prejudice any right of a solicitor or advocate to refuse or give up a case or to entrust it to another solicitor or advocate.
...
(7) Except in so far as expressly provided under this Act, the fact that the services of counsel or a solicitor are given by way of legal aid or advice and assistance shall not affect the relationship between or the respective rights in that connection of counsel, solicitor and client."
Provision for payment of remuneration to solicitor and counsel is made by section 33:
"(1) ...Any solicitor or counsel who acts for any person by providing legal aid or advice and assistance under this Act shall be paid out of the Fund in accordance with section 4(2)(a) of this Act in respect of any fees or outlays properly incurred by him in so acting.
...
(2) The Secretary of State may, by regulations made under this section, make such provision as seems to him appropriate in respect of the fees and outlays of solicitors and counsel and, in respect of advice and assistance as mentioned in paragraph (b) of this subsection, advisers -
(a) acting in any proceedings for a person to whom legal aid has been made available; or
(b) providing advice and assistance in accordance with Part II of this Act.
(3) Without prejudice to the generality of subsection (2) above, 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 and outlays allowable and the conditions under which such fees and outlays may be allowed;
(c) provide for the assessment and taxation of fees and outlays, and for the review of any such assessment or taxation, either by the Secretary of State or by any other person;
(d) prescribe general principles to be applied in connection with any such assessment, taxation or review;
(e) prescribe forms to be used for the purposes of any regulations made under...
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