Assessed & Prescribed Fees under Schedule 4

Schedule 4 identifies two distinct categories for calculating how a fee is payable, which we refer to as ‘prescribed’ and ‘assessed’ fees.

Prescribed Fees

Prescribed fees are payable in accordance with paragraph 1 of the notes on the operation which states:

“Subject to the following provisions of this Schedule, the fees of counsel shall be calculated by the Board, or in the event of dispute by the auditor, in accordance with the fees prescribed in the Tables of Fees set out after paragraph 17 to this Schedule, and the fee of a solicitor-advocate for undertaking an item of work in the Court of Session shall be..”

Prescribed fees are mostly set at standard levels and where we are satisfied a fee is payable the standard fees cannot be increased or decreased, subject to the caveat where apportionment of fees may apply.

You should refer to the separate guidance on apportionment for further information.

In addition, a small number of fees are payable within a range. Those fees are payable in accordance with paragraph 2 of the notes on the operation which states:

“Where the Tables of Fees in this Schedule prescribe a range of fees for any item of work the Board, or as the case may be the auditor, shall allow such fee as appears to provide reasonable remuneration for the work,  …”

Where a fee is payable within a range and you claim a fee above the base rate you must justify the level of fee claimed with reference to the factors which are set out in any corresponding note on the operation.

Assessed fees for work where no fee is prescribed

Assessed fees are payable in accordance with paragraph 3 of the notes on the operation which states:

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.”

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, amended the terms of schedule 4 for work done or outlays incurred on or after 1 April 2022, to cover all classes of proceedings in the Court of Session.

Paragraph 3 of the notes on the operation is therefore unlikely to be engaged for a ‘class of proceedings’ but it can still be engaged where there is no prescribed fee for an item of work.

The Bovey Noter decision is still very helpful in clarifying a number of factors and the general approach that should be adopted on the application of payment of ‘assessed fees’.

They include:

• the reference to “including the general levels of fees in the Tables of Fees” does not mean that SLAB or the Auditor should treat the fee as if it were a prescribed fee
• a more flexible and wider approach, having regard to all the circumstances requires to be adopted. One of the circumstances is the general levels of fees in the Tables of Fees, but it is not the only one
• the overriding aim is to provide reasonable remuneration for the work, due regard being had to economy
• the notes on the operation in paragraph 5 in relation to preparation do not apply to ‘assessed fees’ and only apply to prescribed fees.

Where you are claiming a fee that requires to be calculated as an ‘assessed fee’ it is helpful to provide a brief description in support of an item of work with reference to the general level of fees in the Table of Fees or any other relevant circumstances.

You should refer to the separate Legal Aid Guidance for ‘Assessed fees where no fee is prescribed’ for more information.