(Archive) Outlays included in the fixed payment  fee

A feature of the fixed payments scheme is that certain outlays, specified in regulation 4(2), are included within the principal fixed payments and are not separately chargeable under any of the Schedules. The reason for this is that these items of work were generally chargeable as fees under the former detailed arrangements and, with their associated costs, were included in the costings of the fixed payments.

The outlays so specified are

(a) the taking, drawing, framing and perusal of precognitions

(b) the undertaking by another solicitor of any part of the work

(c) photocopying, see paragraph

You cannot submit a claim for any outlay in connection with the cost of taking a precognition, the various elements of such work being clearly set out in the regulation itself. This includes travelling expenses incurred by either you or by a precognition agent in taking a precognition. This work, under the former system whilst carried out by precognition agents was marked up and charged as a fee.

You are entitled to charge mileage for a prison visit to see your client.  It would not be practicable to ask you, every time you visit a client in prison, whether it was for the purpose of taking a precognition.  We assume in all cases, even where you may have taken a precognition that the prime purpose of a visit to a client in prison was to advise the client and take instructions.  The fee element in connection with travel is, of course, always subsumed within the fixed payments chargeable.

This provision also prevents our paying an outlay in connection with taking a precognition from a doctor or any other professional or semi-professional witness to fact who may seek to charge for giving a precognition.  We cannot reimburse you for such a charge as they are clearly outlays in connection with taking a precognition.

The question can arise as to whether work carried out by you amounted to taking a precognition or obtaining a report from a doctor.  One is included within the fee; the other is chargeable as an outlay in the account.

Situations where we will assume that you were taking a precognition include where

• a doctor, or other person, is named on the Crown list. We cannot reimburse you for any payment made to that individual for providing a precognition
• a witness essentially speaking to the facts who happens to be a doctor. This arises most frequently when a doctor has witnessed an offence within an accident and emergency department, but equally could be in the street or in a bar.

Situations in which we will assume you are not taking a precognition include where

• the report is an expert report
• you get a medical report from a client’s GP, psychiatrist or psychologist speaking to a continuing course of treatment which the client has undergone or to the client’s general medical condition
• where an individual charged with assault claims that they have actually been the victim of an assault. You may need a report from a doctor that, apart from stating that the client was treated on a particular date, also describes the injuries suffered by the client.  Although not always the case, the fact that such a report is lodged as a production may tend to suggest it is a report rather than a precognition.

Witnesses in these examples will not tend to be Crown witnesses.

Since all fees incurred in the conduct of a case are subsumed within such fixed payments as are prescribed and chargeable by the regulations, work carried out by another solicitor on behalf of the nominated solicitor is also included within the fixed payments.  You cannot incur an outlay to another solicitor for any work done in connection with the case, for example if you instruct an Edinburgh agent in connection with a bail appeal.

The criminal fees regulations state that where you have to instruct another solicitor, whether an Edinburgh agent in connection with an appeal, a solicitor local to a prison or court or to take local precognitions, you can submit only one account.  Payment of the other solicitor’s account is a matter between you and the other solicitor.  Regulation 4(3) of the criminal fees regulations, which continue to apply subject to the fixed payments regulations in circumstances where there would be a conflict.

Photocopying is a fee, prescribed in Schedule 1, Part 1 of the criminal fees regulations and Schedule 3, Part 1 of the advice and assistance regulations, and is included within the prescribed fixed payments.

Photocopying is not separately chargeable.