Act of Sederunt (Taxation of Judicial Expenses Rules) 2019

CHAPTER 5 APPLICATIONS FOR ALLOWANCE OF AN ADDITIONAL FEE, FOR SANCTION FOR THE EMPLOYMENT OF COUNSEL, AND FOR CERTIFICATION OF SKILLED WITNESSES

Application

5.1.—(1) This Chapter applies for the purpose of applications to the court for—

(a) the allowance of an additional charge;

(b) the certification of skilled witnesses; and

(c) sanction for the employment of counsel in the sheriff court and Sheriff Appeal Court.

(2) Applications to which this Chapter applies are to be made—

(a) in a simple procedure case by incidental orders application;

(b) otherwise by motion.

Additional charge

5.2.—(1) An entitled party may apply to the court for an increase in the charges to be allowed at taxation in respect of work carried out by the entitled party’s solicitor.

(2) Where the application is made to the Court of Session the court may, instead of determining the application, remit the application to the Auditor to determine if an increase should be allowed, and the level of any increase.

(3) The court or, as the case may be, the Auditor must grant the application when satisfied that an increase is justified to reflect the responsibility undertaken by the solicitor in the conduct of the proceedings.

(4) On granting an application the court must, subject to paragraph (5), specify a percentage increase in the charges to be allowed at taxation.

(5) The Court of Session may instead remit to the Auditor to determine the level of increase.

(6) In considering whether to grant an application, and the level of any increase, the court or, as the case may be, the Auditor is to have regard to—

(a) the complexity of the proceedings and the number, difficulty or novelty of the questions raised;

(b) the skill, time and labour and specialised knowledge required of the solicitor;

(c) the number and importance of any documents prepared or perused;

(d) the place and circumstances of the proceedings or in which the work of the solicitor in preparation for, and conduct of, the proceedings has been carried out;

(e) the importance of the proceedings or the subject matter of the proceedings to the client;

(f) the amount or value of money or property involved in the proceedings;

(g) the steps taken with a view to settling the proceedings, limiting the matters in dispute or limiting the scope of any hearing.

Certification of skilled persons

5.3.—(1) On the application of a party the court may certify a person as a skilled person for the purpose of rule 4.5 (skilled persons).

(2) The court may only grant such an application if satisfied that—

(a) the person is a skilled person; and

(b) it is, or was, reasonable and proportionate that the person should be employed.

(3) The refusal of an application under this rule does not preclude the making of a further application on a change of circumstances.

(4) Where the application is made in proceedings other than—

(a) proceedings subject to Chapter 43 of the Rules of the Court of Session 1994;

(b) proceedings subject to Chapter 36 of the Ordinary Cause Rules 1993; or

(c) a simple procedure case,

paragraph (5) applies.

(5) Where this paragraph applies, the court may only determine that the certification has effect for the purposes of work already done by the person where the court is satisfied that the party applying has shown cause for not having applied for certification before the work was done.

Sanction for the employment of counsel in the sheriff court and Sheriff Appeal Court

5.4.—(1) This rule applies to proceedings in the sheriff court and Sheriff Appeal Court.

(2) On the application of a party the court may, subject to paragraphs (4) to (6), sanction—

(a) the proceedings;

(b) any part of the proceedings;

(c) particular work involved in the conduct of the proceedings; or

(d) any combination of (a), (b) and (c),

as suitable for the employment of counsel by that party.

(3) Where proceedings or work are sanctioned as suitable for the employment of senior counsel, or as suitable for the employment of more than one counsel, the interlocutor must record that.

(4) Paragraphs (5) and (6) apply where the application is made in proceedings other than—

(a) proceedings subject to Chapter 36 of the Ordinary Cause Rules 1993;

(b) a simple procedure case; or

(c) proceedings in the Sheriff Appeal Court.

(5) An interlocutor sanctioning proceedings, or a part of proceedings, as suitable for the employment of counsel has no effect as regards work carried out by counsel before the date of the interlocutor.

(6) The court may only sanction particular work already carried out as suitable for the employment of counsel when satisfied that the party applying has shown cause for not having applied for sanction before the work was carried out.

(7) The refusal of an application under this rule does not preclude the making of a further application on a change of circumstances.