The Civil Legal Aid (Scotland) (Fees) Regulations 1987

Citation and commencement

1.  These Regulations may be cited as the Civil Legal Aid (Scotland) (Fees) Regulations 1987 and shall come into force on 1st April 1987.

Interpretation

2.—(1) In these Regulations, unless the context requires–

“auditor” means–

(a)

in relation to proceedings in the Court of Session, 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–

(i)

where solicitors' fees are required to be calculated in accordance with Chapter III of the Table of Fees in Schedule 2, the auditor of a sheriff court to be specified, failing agreement, by that tribunal;

(ii)

where solicitors' fees are required to be calculated in accordance with Chapter I of the Table of Fees in Schedule I, the Auditor of the Court of Session;

“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 9.

(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 allowable to solicitors

4.  Subject to the provisions of regulation 5 regarding the calculation of fees, a solicitor may be allowed such fees as are reasonable for conducting the case 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 Schedule 1.

(2) A solicitor’s fees in relation to proceedings in the sheriff court shall be calculated in accordance with Schedule 2.

(3) A solicitor’s fees in relation to proceedings in the House of Lords, Restrictive Practices Court or Employment Appeal Tribunal shall be calculated in accordance with Chapter I of the Table of Fees in Schedule 1.

(4) A solicitor’s fees in relation to proceedings in the Scottish Land Court shall be calculated in accordance with Chapter III of the Table of Fees in Schedule 2.

(5) (a) Subject to sub-paragraphs (b) and (c) hereof, a solicitor’s fees in relation to proceedings in the Lands Tribunal for Scotland shall be calculated in accordance with Chapter III of the Table of Fees in Schedule 2;

(b) Subject to sub-paragraph (c) hereof, the Board may, where circumstances warrant it, decide that such fees shall be calculated in accordance with Chapter I of the Table of Fees in Schedule 1 and they shall be calculated accordingly;

(c) In relation to any proceedings where the Lands Tribunal for Scotland have, in terms of rule 33 of the Lands Tribunal for Scotland Rules 1971((1)), made an order as to taxation of expenses between party and party–

(i) where that order required taxation according to the fees payable in the Court of Session, a solicitor’s fees shall be calculated for purposes of these Regulations in accordance with Chapter I of the Table of Fees in Schedule 1; and

(ii) where that order required taxation according to the sheriff court table of fees, a solicitor’s fees shall be calculated for purposes of these Regulations in accordance with Chapter III of the Table of Fees in Schedule 2.

(6) 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.

Fees allowable to counsel

6.  Subject to the provisions of regulation 7 regarding calculation of fees, counsel may be allowed such fees as are reasonable for conducting the case in a proper manner, as between solicitor and client, third party paying.

7.—(1) Counsel’s fees in relation to proceedings in the Court of Session shall be calculated in accordance with Schedule 3.

(2) Counsel’s fees for any work in relation to proceedings in the sheriff court, House of Lords, Restrictive Practices Court, Employment Appeal Tribunal, 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.

(3) Where work done by counsel 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.

Outlays allowable to solicitors

8.—(1) Subject to paragraph (2) of this Regulation, a solicitor may be allowed such outlays as are reasonable for conducting the case in a proper manner, as between solicitor and client, third party paying.

(2) The outlays shall include a charge in respect of posts and incidents of 12 per cent of the amount of fees allowable to the solicitor (excluding any amount added in accordance with regulation 5(6)), except where a solicitor charges the fee specified in paragraph 1 of Part I of Chapter IV of the Table of Fees in Schedule 2.

Taxation of fees and outlays

9.—(1) If any question or dispute arises between the Board and a solicitor or counsel as to the amount of fees or outlays allowable to the solicitor, or as to the amount of fees allowable to counsel, from the Fund under these Regulations, the matter shall be referred for taxation by the auditor.

(2) A reference to the auditor under paragraph (1) above may be at the instance of the solicitor concerned or, where the question or dispute affects the fees allowable to counsel, of the counsel concerned, or of the Board, and the auditor shall give reasonable notice of the diet of taxation to the solicitor or counsel as appropriate and the Board.

(3) The Board and any other party to a reference to the auditor under paragraph (1) above shall have the right to state written objections to the court in relation to the auditor’s report within 14 days of the issue of that report, and may be heard thereon; and where the court is the Court of Session rule 349 of the Act of Sederunt (Rules of Court, consolidation and amendment) 1965((2)) shall apply to the determination of any such objections.

(4) For the purposes of this regulation the expression “the court” means–

(a) in relation to any report of the Auditor of the Court of Session, the Court of Session;

(b) in relation to any report of the auditor of a sheriff court, the sheriff; and

(c) in relation to any report of the Auditor of the Scottish Land Court, the Chairman of the Scottish Land Court.

Revocation

10.  Without prejudice to their continuation in effect for the purposes of legal aid under the Legal Aid (Scotland) Act 1967((3)) by virtue of paragraph 3 of Schedule 4 to the Legal Aid (Scotland) Act 1986, the following Regulations are hereby revoked:–

• The Legal Aid (Scotland) (Fees in Civil Proceedings) Regulations 1984((4));

• The Legal Aid (Scotland) (Fees in Civil Proceedings) Amendment Regulations 1985((5));

• The Legal Aid (Scotland) (Fees in Civil Proceedings) Amendment Regulations 1986((6))

Ian Lang

Parliamentary Under Secretary of State, Scottish Office

New St. Andrew’s House,

Edinburgh

5th March 1987