Assessment of an account – the process and role of the assessor

Where we receive an account we are obliged to assess the fees and outlays allowable, determine the sum payable out of the Fund and then pay that sum to you.

The purpose of this guidance is to facilitate the submission of an account that can be assessed by our staff and paid as claimed with minimum intervention or negotiation.

We are not a party to the proceedings and, as such, we will not have the same level of knowledge of the case as you do but you can assist us in the assessment of the account by ensuring that you provide a brief and focussed narrative in support of each charge so that we can better understand why it was necessary to have undertaken the work that you have.

Providing a sufficiently detailed narrative in support of charges will increase the chances of the account being paid as claimed or increase the amount we will be able to pay. In the vast majority of cases, where we consider it necessary to restrict or disallow a charge it will be because of a lack of specification provided in support of the claim.

The charge will often be reinstated, or the fee proposed increased, where you provide the further information that we require, so providing this up front will ensure earlier payment without the additional administration.

Disputes in relation to solicitor’s fees and outlays are not unique to legal aid accounts.

In the opinion of Lady Smith, in the Hearing on a Note of Objections to the Auditor’s Report in Petitions of Aberdeenshire Council for an Order freeing the children A, B and C for Adoption, [2006] CSOH 14, she said “the quantification and payment of lawyers’ fees has been the source of regular and unremitting anxiety, grief, frustration and even anger, for generations”.  That case like most disputes in relation to solicitors, or counsels, costs was in relation to a taxation where the legal aid Fund was not the paying party.

Where we are unable to make payment at the sum which is claimed, the assessment of an account will be a two-stage process.

An offer of payment will be issued. This means that we assess and pay the amount that we are satisfied we can allow on the information available. An offered account will contain reasons as to why we are unable to pay any individual entry as claimed.

Where the offer is accepted, that is the end of the process.

Where the offer is not accepted, you then have the opportunity to provide further information and/or documentation and to discuss any restriction with us.

We are not in a position to know whether a restriction is to be challenged or not until such time as you revert back to us. This is the second, or “negotiation”, stage.

Further information provided at this stage may well result in charges being reinstated.

In some cases it may be necessary to repeat the negotiation stage on more than one occasion.

Where a series of negotiations take place we will make payment, where possible, of any undisputed sums where we are satisfied that they can be paid.

The assessment process is designed to identify those charges which are incapable of resolution.

This process will result in the settlement of the overwhelming majority of accounts that we receive.

It is only at this point, and in the highly unlikely event that we are unable to reach an accommodation on the amount payable, that the assessment process with us come to a conclusion and you are then entitled to exercise your right to taxation.

The need to proceed to taxation is rare and we will make a concerted effort, wherever possible, to compromise and resolve disputes without incurring the time and expense of taxation.

The majority of accounts that we receive are paid as claimed.

Accounts staff are required to assess an account objectively and determine, on the information before them, whether work was actually, necessarily and reasonably done, due regard being had to economy or for conducting the proceedings in a proper manner.

In doing so, we must be satisfied that the work carried out was done in the most efficient and cost effective manner, consistent with the giving of proper advice and representation, as appropriate, to your client, and what the proper level of remuneration should be.

In other words, would a prudent solicitor, aware of the basis of assessment of their account, have considered it necessary to undertake the work and was the work actually and reasonably undertaken.

The decision is a matter of balanced judgement rather than arithmetical calculation.

Awareness of these criteria, the recording of work and sufficient narrative in your account should result in an account paid without the need to request further information.

It is important to bear in mind that it is not necessarily the time spent or amount claimed which will be payable, it is the time or amount claimed that is reasonable that is payable.

Assessment of an account involves making a judgment, in respect of individual items of work and the case as a whole.

In order that we can reach an informed view on the charges in an account the narrative must contain a sufficient level of detail.

For example, where your account includes a charge for a meeting you should provide details of the instructions taken, the advice given and how the case was progressed sufficient to justify the fee that has been claimed.

This does not mean that we expect, or require, you to provide every word of the advice given or every detail on the law and procedure to be adopted – often advice on a particular procedure will be relatively standard – but you should always provide a sufficient narrative of the advice given on the case in support of a charge.

The greater the sum that has been claimed on a particular work activity, the more detail should be provided in support of that claim.

The minimum requirements for your accounts are a detailed narrative, sufficient to determine the reasonableness of the work.

Mr McDougall, former Auditor of Court, Glasgow made the following observations in an Auditor’s report in PF (Glasgow) -v- WW issued on 7 October 1983 regarding narrative in an account.

He said: “I would have to say that agents who elect to charge a detailed account oblige themselves to provide details of sufficient clarity that would make sense to anyone reading the narrative(s) in respect of any given charge, the more so in Third Party Paying accounts of this nature where the recipient has no personal knowledge of the case or its progress”.

He continued: “The composing of narratives should have the effect of focussing the mind of the presenter of the account and the result should be the removal of doubt in the mind of the recipient. The propriety of the charges is oft times resolved in pursuance of this exercise”.

In assessing an account we will not only restrict any charges that appear to be excessive, unvouched or for which there was no cover, but we will increase any fees where they have been understated or add to the account any fee which has been omitted or substitute the appropriate fee where this is obvious and appropriate.

We can only allow a charge for work done or outlays incurred supported by appropriate evidence and justified on the face of the account.