The Civil Legal Aid (Scotland) (Fees) Amendment (No. 2) Regulations 2007

Explanatory Note

(This note is not part of the Regulations)

These Regulations amend the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (“the principal Regulations”).

They provide that, in cases where civil legal aid is made available for proceedings in the Judicial Committee of the Privy Council, where any question or dispute arises between the Scottish Legal Aid 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 the principal Regulations the matter shall be referred for taxation to the Registrar of the Judicial Committee of the Privy Council (‘the Registrar’) (regulation 4).

The Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5), by section 73, amended the Legal Aid (Scotland) Act 1986 to extend the availability of civil legal aid in proceedings before the Judicial Committee of the Privy Council to include proceedings raised under paragraphs 32 and 33 of Schedule 6 to the Scotland Act 1998. The principal Regulations are amended so as to include reference to such proceedings to provide that a solicitor’s fees shall be calculated in accordance with Schedule 5 to the principal Regulations (regulation 5).

The Regulations insert a reference to Judicial Committee of the Privy Council proceedings in regulation 2(1A) of the principal Regulations. This provides that for the purposes of the principal Regulations a solicitor-advocate shall be a senior solicitor-advocate where he is undertaking work equivalent to that which would be done by a senior counsel in a case in the Judicial Committee of the Privy Council (regulation 4).

The Regulations insert a reference to Judicial Committee of the Privy Council proceedings in regulation 10(2A) of the principal Regulations. This provides that the fees of a solicitor-advocate for any work in relation to proceedings in the Judicial Committee to the Privy Council 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 legally aided (regulation 6).

The Regulations provide that persons who are dissatisfied with a taxation decision by the Registrar may lodge a petition to the Judicial Committee to the Privy Council which shall be considered by a Board of the Judicial Committee of the Privy Council (regulation 8).

With the exception of regulation 4(a), the Regulations apply in respect of proceedings commenced on or after 29th March 2007. Regulation 4(a), which provides that references for taxation shall be remitted to the Registrar, applies in respect of proceedings concluded before 29th March 2007 which are referred for taxation after that date and proceedings concluded on or after that date (regulation 2).