Act of Sederunt (Solicitor and Client Accounts in the Sheriff Court) 1992

Statutory Instruments

1992 No. 1434 (S.141)

SHERIFF COURT, SCOTLAND

Act of Sederunt (Solicitor and Client Accounts in the Sheriff Court) 1992

Made

16th June 1992

Laid before Parliament

29th June 1992

Coming into force

20th July 1992

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 1971((1)) and by section 40 of the Sheriff Courts (Scotland) Act 1907((2)) and of all other powers enabling them in that behalf, having consulted the Sheriff Court Rules Council in terms of section 32(3) of the Sheriff Courts (Scotland) Act 1971, do hereby enact and declare:

Citation and commencement

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Solicitor and Client Accounts in the Sheriff Court) 1992 and shall come into operation on 20th July 1992.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Remit of solicitor’s account for taxation

2.—(1) Subject to section 61A(1) of the Solicitors (Scotland) Act 1980((3)), the sheriff may remit the account of a solicitor to his client to the Auditor of Court for taxation.

(2) Where a remit is made under sub-paragraph (1)—

(a) the solicitor shall, within 21 days, lodge with the Auditor the account, which shall be in such form as shall enable the Auditor readily to establish the nature and extent of the work done to which the account relates and shall detail the outlays incurred by the solicitor, together with such supporting material as is necessary to vouch the items on the account;

(b) the Auditor shall assign a diet of taxation not earlier than fourteen days from the date he receives the account and intimate that diet forthwith to the solicitor;

(c) the solicitor shall then, forthwith, send by first class recorded delivery post a copy of the account lodged to the client (if such a copy has not already been sent to the client) and give notice in terms of Form A in the Schedule to this Act of Sederunt, of the date, time and place of the taxation to the client;

(d) the Auditor shall report his decision to the court and shall forthwith send a copy of his report to the solicitor and to the client; and

(e) the solicitor or the client may, provided that he or his representative has attended at the diet of taxation, lodge a note of reasoned objections to the report within seven days from the date of the report, and the sheriff shall dispose of such objections in a summary manner, with or without answers.

Taxation of litigation account

3.—(1) Where the Auditor taxes the account of a solicitor to his client in respect of the conduct of a litigation on behalf of the client, he—

(a) shall allow a sum in respect of such work and outlays as have been reasonably incurred;

(b) shall allow in respect of each item of work and outlay such sum as may be fair and reasonable having regard to all the circumstances of the case;

(c) shall, in determining whether a sum charged in respect of an item of work is fair and reasonable, take into account—

(i) the complexity of the litigation and the number, difficulty or novelty of the questions raised;

(ii) the skill, labour, specialised knowledge and responsibility involved;

(iii) the time spent on the item of work and on the litigation as a whole;

(iv) the number and importance of any documents or other papers prepared or perused without regard to length;

(v) the place where and the circumstances (including the degree of expedition required) in which the solicitor’s work or any part of it has been done;

(vi) the amount or value of any money or property involved in the litigation; and

(vii) the importance of the litigation or its subject matter to the client;

(d) shall presume (unless the contrary is demonstrated to his satisfaction) that—

(i) an item of work or outlay was reasonably incurred if it was incurred with the express or implied approval of the client;

(ii) the fee charged in respect of an item of work or outlay was reasonable if the amount of the fee or the outlay was expressly or impliedly approved by the client; and

(iii) an item of work or outlay was not reasonably incurred, or that the fee charged in respect of an item of work or outlay was not reasonable if the item of work, outlay or fee charged, was unusual in the circumstances of the case, unless the solicitor informed the client prior to carrying out the item of work or incurring the outlay that it might not be allowed (or that the fee charged might not be allowed in full) in a taxation in judicial proceedings between party and party; and

(e) may disallow any item of work or outlay which is not vouched to his satisfaction.

Amendment of Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1989

4.—(1) The Schedule to the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1989((4)) shall be amended in accordance with the following sub-paragraphs.

(2) In paragraph 1 of the General Regulations omit the words “(a) solicitor and client, client paying, (b) solicitor and client, third party paying and (c)”.

(3) In paragraph 2 of the General Regulations omit the words “as between party and party”.

(4) In paragraph 5(b) of the General Regulations omit the words from “Where such an increase” to “against his own client.”

(5) In paragraph 7 of the General Regulations omit—

(a) the words “in accounts as between party and party” where they occur in the first sentence; and

(b) the words from “In accounts” to the end of the paragraph.

(6) In paragraph 8 of the General Regulations omit the words “between party and party”.

(7) In paragraph 12 of the General Regulations omit the words “as between party and party”.

J.A.D. Hope

Lord President, IPD

Edinburgh

16th June 1992

Paragraph 2(2)(c)

SCHEDULE Notice to Client Intimating Diet of Taxation of Solicitors' Account

FORM A

Explanatory Note

(This note is not part of the Act of Sederunt)

This Act of Sederunt—

(1) enacts a procedure for remitting the account of a solicitor to his client to the Auditor of Court for taxation (paragraph 2); and

(2) provides the Auditor of Court with principles to be applied in such a taxation where the account relates to litigation work (paragraph 3);

(3) removes agent and client accounts from the ambit of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1989 (S.I. 1989/434) (paragraph 4);

(4) provides a standard form for intimation of diet of taxation to client (schedule).

(1)

1971 c. 58; section 32 was amended by paragraph 12 of Schedule 2 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) and by section 2(4) of the Civil Evidence (Scotland) Act 1988 (c. 32); and was extended by sections 18A and 34A of the Social Work (Scotland) Act 1968 (c. 49) (inserted by sections 66 and 78 of the Children Act 1975 (c. 72)), section 15(1) of the Presumption of Death (Scotland) Act 1977 (c. 27), and section 97 of the Debtors (Scotland) Act 1987 (c. 18).

(2)

7 Edw 7 c. 51; section 40 was amended by the Secretaries of State Act 1926 S.I. (3); the Administration of Justice (Scotland) Act 1933, Schedule, and by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983, Schedule 1 paragraph 7 and Schedule 2. See the Statutory Instruments Act 1946 section 5(2).

(3)

1980 c. 46; section 61A was inserted by section 36(3) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40).

(4)

S.I. 1989/434, amended by S.I. 1991/848.