The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2011

Made: 24th February 2011

Laid before the Scottish Parliament: 28th February 2011

Coming into force: 1st April 2011

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 33(2)(a), (3)(a) to (d) and (f) and 36(1) and (2)(a) of the Legal Aid (Scotland) Act 1986[^f00001] and all other powers enabling them to do so.

Citation and commencement

1

These Regulations may be cited as the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2011 and come into force on 1st April 2011.

Application

2

These Regulations apply—

• (a) as regards regulation 4, only in relation to proceedings in which fees and outlays have been recovered on or after the coming into force of these Regulations;

• (b) as regards regulation 5, only in relation to proceedings in which the date of completion of the proceedings is on or after the coming into force of these Regulations; and

• (c) as regards regulations 6, 7 and 9, only in relation to work done and outlays incurred on or after the coming into force of these Regulations.

Amendment of the Civil Legal Aid (Scotland) (Fees) Regulations 1989

3

The Civil Legal Aid (Scotland) (Fees) Regulations 1989[^f00002] are amended in accordance with regulations 4 to 9.

4

In regulation 3 (Fees and outlays regulated by these Regulations)—

• (a) in paragraph (2) for “paragraphs (3)(b), (4) and (5)” substitute “paragraph 3(b) and paragraphs (4) to (6)”;

• (b) type=start slip=2011-11-01 time=1320675499668for paragraph (3)(b) substitute—type=end slip=2011-11-01 time=1320675499668

(b) the Board may, at the request of the solicitor or any counsel acting for the person in receipt of legal aid at the conclusion of the proceedings, and subject to paragraphs (4) to (6), instead of making payment to that solicitor (or counsel as the case may be) in accordance with paragraph (2), pay to the solicitor (or counsel as the case may be) the amount of any fees and outlays so recovered.

• (c) for paragraph (4) substitute—

(4) Where the Board agrees to a request from the solicitor for payment in accordance with paragraph (3)(b), the Board shall also make payment in accordance with paragraph(3)(b) to any counsel entitled to request such payment. (4A) Where counsel requests payment in accordance with paragraph (3)(b) in a case where the solicitor last acting requests payment in accordance with paragraph (2)— (a) the solicitor’s fees and outlays shall be paid in accordance with paragraph(2); (b) the Board shall determine as accurately as is reasonable what part of the fees and outlays recovered represents fees payable to any counsel; (c) the solicitor and counsel shall supply the Board with such information as the Board may require for the purpose of determining the sum referred to in paragraph (b); (d) subject to paragraph (5), the Board may make payment to counsel of the sum determined in accordance with sub-paragraph (b) if satisfied that it is reasonable to do so having regard to all the circumstances including— (i) the respective roles of counsel and any counsel previously acting for the person in receipt of legal aid; (ii) any sums paid or due to be paid to any counsel previously acting for the person in receipt of legal aid; (iii) the sum that would be paid to counsel in accordance with paragraph (2); and (iv) any resultant cost to the fund or to the person in receipt of legal aid.

• (d) in paragraph (5) for “paragraph (4)” substitute, “that paragraph”; and

• (e) after paragraph (5) insert—

(6) Where a payment is made to counsel in accordance type=start slip=2011-11-01 time=1320675560356with paragraph (3)(b)type=end slip=2011-11-01 time=1320675560356 no counsel who previously acted for the person in receipt of legal aid in those proceedings may refer to the auditor any question or dispute as to the amount of fees allowable in the proceedings.

5

For regulation 8 (accounts in respect of solicitors’ fees and outlays) substitute—

(8) (1) Subject to paragraph (2) below, accounts prepared in respect of fees and outlays allowable to solicitors and fees allowable to counsel shall be submitted to the Board no later than 4 months after the date of completion of the proceedings in respect of which that legal aid was granted. (2) The Board may accept accounts submitted in respect of fees and outlays allowable to solicitors and fees allowable to counsel later than the 4 months referred to in paragraph (1) if it considers that there is a special reason for the late submission.

6

For regulation 9 (fees allowable to counsel) substitute—

(9) Subject to the provisions of regulation 8 regarding the submission of accounts, and the provisions of regulation 10 regarding the calculation of fees, the fees allowable to counsel shall be fees for such work as shall be determined by the Board to have been actually and reasonably done, due regard being had to economy.

7

In regulation 10 (fees allowable to counsel)—

• (a) in paragraph (1) after “Court of Session” insert “and sheriff court”; and

• (b) in paragraph (2) omit “sheriff court,”.

8

• (1) In regulation 11, for paragraphs (2), (3) and (4)[^f00003] substitute—

(2) A claim by counsel under this regulation may be made only in relation to any case where— (a) a period of no less than 6 months has elapsed since the date on which the Board gave notice in writing of the grant of civil legal aid; (b) an interval of no less than 6 months has elapsed since the immediately preceding claim was made; or (c) counsel reasonably anticipates not receiving further instructions in the proceedings. (3) The amount of any payment in respect of a claim by counsel under this regulation in relation to proceedings referred to in regulation 10(2) and (2A) shall be limited to 75% of the fees that will become eligible for payment and earned during the period covered by the claim. (4) When assessing the fee payable to a solicitor in respect of legal aid the Board may have regard to any payment, or payments, made to account under advice and assistance in relation to the same matter and, where the work in respect of which such payment, or payments, is made might reasonably have been carried out under legal aid, it may reduce the amount of the fee payable accordingly.

• (2) In so far as relating to payments to counsel, paragraph(1) applies only in relation to fees for work carried out after the coming into force of these Regulations.

9

For Schedule 4 (fees of counsel for proceedings in the Court of Session) substitute the Schedule set out in the Schedule to these Regulations.

Revocation

10

Regulation 10 of the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003[^f00004] is revoked.

SCHEDULE

Signed

KENNY MACASKILL — A member of the Scottish Executive — 24th February 2011

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (“the 1989 Regulations”), principally in so far as relating to the payment of fees to counsel.

Regulation 4 amends the provisions in regulation 3 of the 1989 Regulations relating to the circumstances in which a solicitor or counsel may elect to receive payment of expenses recovered in favour of an assisted person instead of payment in accordance with regulation 3(2). In particular it introduces provisions whereby counsel can request payment of the expenses recovered in respect of counsel’s fees in circumstances where the solicitor has elected to receive payment in accordance with regulation 3(2).

Regulation 5 amends regulation 8 of the 1989 Regulations by shortening the period within which a solicitor requires to submit an account to the Scottish Legal Aid Board (“the Board”) from 6 months after the completion of proceedings to 4 months, and by introducing the same requirement for counsel.

Regulation 6 substitutes for regulation 9 of the 1989 Regulations a provision specifying that the work for which fees are payable to counsel is such work as shall be determined by the Board to have been actually and reasonably done, due regard being had to economy.

Regulations 7 and 9 and the Schedule to the Regulations amend the fees payable to counsel for proceedings in the Court of Session and sheriff court by—

• amending regulation 10 of the 1989 Regulations so as to provide that counsel’s fees in relation to proceedings in both the Court of Session and the sheriff court should be calculated in accordance with Schedule 4 to those Regulations; and

• substituting for Schedule 4 to the 1989 Regulations a new Schedule containing separate Tables of Fees specifying the fees payable to counsel for proceedings in the Court of Session and sheriff court.

Regulation 8 amends regulation 11 of the 1989 Regulations by altering the circumstances in which counsel instructed on behalf of an assisted person is entitled to claim a payment to account of fees incurred. The position in so far as relating to claims by solicitors, which had previously been amended by the Civil Legal Aid (Scotland) (Fees) Amendment Regulation 2003, is restated.

Footnotes

[^f00001]: 1986 c.47. Section 33(2) was amended by the Legal Profession and Legal Aid (Scotland) Act 2007 (asp 5) (“the 2007 Act”), section 67(7)(b). Section 36(2) was amended by the Legal Aid Act 1988 (c.34), Schedule 4, paragraph 6 and by the 2007 Act, section 76(2). The functions of the Secretary of State were transferred to the Scottish Ministers, in so far as they are within devolved competence, by the Scotland Act 1998 (c.46), section53.

[^f00002]: S.I. 1989/1490; amended by S.I. 1990/473, 1991/565, 1994/1015 and 1233, 1995/1044, 1997/689, 1999/1042 and S.S.I.2002/496, 2003/178, 2004/281, 2005/449, 2007/14, 181 and 438, 2009/203 and 312, and 2010/166.

[^f00003]: Paragraphs (2), (3) and (4) of regulation 11 were previously amended by S.S.I. 2003/178, but only in so far as relating to payments to solicitors.

[^f00005]: 2007 asp 4.

[^f00006]: 1995 c.36.