https://www.slab.org.uk/guidance/assessed-fees-for-work-where-no-fee-is-prescribed/
https://www.slab.org.uk/guidance/assessed-fees-for-work-where-no-fee-is-prescribed/
Paragraph 3 of the notes on the operation states:
“Where there is no prescribed fee for any class of proceedings or any item of work, we, or as the case may be the auditor, will allow an assessed the fee as appears to be appropriate to provide reasonable remuneration for the work with regard to all the circumstances, including the general levels of fees in the Tables of Fees.”
In certain circumstances it may be that the application of paragraph 3 of the notes on operation will require you to claim items of work as an ‘assessed fee’.
The Inner House decision in the hearing on Note of Objections to the Auditor’s Report by Mungo Bovey, KC. in the application of AB, [2021] CSIH 3, was a case in which there was no prescribed fee for the class of proceedings.
The Legal Aid and Advice and Assistance (Miscellaneous Amendment) (Scotland) Regulations 2022, has subsequently amended the terms of schedule 4 for work done or outlays incurred on or after 1 April 2022, to cover all other proceedings/ actions in the Court of Session.
In light of this it is now highly unlikely that you should require to claim an ‘assessed fee’ as a result of the “class of proceedings” test as prescribed in schedule 4, paragraph 3.
However, this decision is still very helpful in clarifying a number of factors that you should consider and the general approach we will adopt on the application of payment of ‘assessed fees’ for an item of work that is not prescribed.
They include:
The overall aim is to provide reasonable remuneration for any ‘assessed fee’ having regard to all of the circumstances in the case.
Before you can claim an ‘assessed fee’ for written work you must be satisfied that it is not covered by other fees contained within the Table of Fees and that payment is not specifically precluded by the notes on the operation.
For example:
Where an “assessed fee” is appropriate you should consider the fee with regard to all the circumstances, including the general levels of fees in the Tables of Fees for written work which is similar in nature.
Our approach in determining a reasonable “assessed fee” is:
It is important however to emphasise that our statutory obligation is to allow a reasonable fee.
The approach to calculating written work, where appropriate, on the basis of the rules for ‘preparation’ reflects the practice of auditors of court when they have assessed items of written work such as opinions or written submissions where expressly ordered by the court.
Auditors would frequently allow those fees at the equivalent of 2/3rds of the prescribed fee that they would allow for substantive court hearings.
Where the fee claimed is broadly in line with a prescribed fee for similar written work or the time engaged supports an 8-hour preparation day we may allow the fee as reasonable.
Where your claim departs from the general level of fees payable for similar written work you must provide justification to support the fee that has been charged.
Where we are not satisfied based on the information available on the level of fee that has been claimed we will allow a reasonable fee and invite you to provide further information in support of the claim.
Information that we may find helpful in determining a reasonable fee may include the time engaged in the drafting of the written work, the nature of the work including reference to, for example, the importance, novelty or complexity of the applicable law and, as appropriate, the absence of previous authority or the existence of adverse authority.
Where you frame the grounds of appeal and claim the equivalent fee for drafting of an ‘initiating document’ we may allow as reasonable the sum claimed.
Where the fee claimed departs from the general level of fees payable for similar written work you must provide justification to support the fee that has been claimed.
In accordance with Court of Session Rule 58.11(2), where permission is granted, with the exception of the work associated with the written statement of argument or for any other work for which a separate fee is prescribed (eg adjustments) you may claim a reasonable ‘assessed fee’ for any necessary work ordered by the Lord Ordinary and reasonable undertaken by counsel.
You may claim this work as a single fee or on an item-by-item basis.
Where separate charges are made you must demonstrate that the overall claim is reasonable having regard to all the circumstances, including the general levels of fees in the Tables of Fees.
Where we are not satisfied we will reduce the fee to a sum that we consider reasonable and invite you to provide further information in support of your claim.
It is understood that the Court of Session now routinely invite counsel to lodge written submissions for By Order hearings or contested motions in family actions. In light of this you may claim a reasonable fee where they have been lodged.
In the Sheriff Court you may claim a reasonable fee for submissions where you can demonstrate that these have been ordered by the court.
This reflects guidance that we agreed with the Faculty of Advocates in relation to the payment of written submissions that was published during the Covid pandemic.
Ordinarily the drafting of a motion should be undertaken by the instructing solicitor.
Where you seek payment we must be satisfied that it was necessary for counsel to draft the motion standing the test that fees for such work shall be determined by SLAB to have been actually and reasonably done, due regard being had to economy (Reg 9 of the Civil Fees Regulations).
Paragraph 13(b) of the Notes on Operation states:
“except on cause shown, no fee shall be allowed to counsel for drafting or revising a motion or for attendance at the calling of a motion”
Ordinarily the drafting of a motion should be undertaken by the instructing solicitor.
Where you seek payment we must be satisfied that it was necessary for counsel to draft the motion standing the test that fees for such work shall be determined by the Board to have been actually and reasonably done, due regard being had to economy (Reg 9 of the Civil Fees Regulations).
Unlike senior counsel, the respective Tables of Fees payable to junior counsel includes a prescribed fee for “Any other hearing where no other fee is specified”. As such there should be no hearing that requires to be determined as an ‘assessed fee’.
The respective Tables of Fees does not include an equivalent fee for “any other hearing” which is prescribed for junior counsel.
As such you may claim a reasonable ‘assessed fee’ for “any other hearing” which is not a substantive hearing (e.g. is not a proof, debate or “like hearing” payable at the ‘per day’ rate).