Civil legal aid block fee accounts: instruction fees, counterclaims and transfers of solicitor

The lower instruction fee applies in situations where, prior to the date appointed for the lodging of defences or the making of an order dispensing with written defences, instructions are received not to proceed or, alternatively, no further instructions are given.

However, given the fee covers “all work from the taking of instructions to the conclusion of proceedings where no fee is payable under paragraph (b)” it can also be considered in other circumstances where a solicitor was granted legal aid after the period where instruction fee 1b has elapsed and that fee was never charged (e.g. where the initial work was being conducted by a party litigant).

Where the client was a private paying client and the grant of legal aid is made available to the same client any claim for an instruction fee is likely to be fee challenged on the basis that you will already have been paid a fee for the instructions on a private fee paying basis.

The higher instruction fee covers all work undertaken from the time instructions are initially received to raise or defend an action until the point of lodging defences or making an order dispensing with written defences.

The pursuer is entitled to the fee once a Notice of Intention to Defend (NID) is lodged or where, in the unlikely event no NID is lodged, the defender enters appearance by other means.

The defender is entitled to the fee once a NID is lodged, the first appearance of the defender or the issue of the usual procedural timetable.

Where a counterclaim is made all parties involved in the proceedings are entitled to claim the fee for a counterclaim, it is not only restricted to the party who brings the claim.

This fee only applies where a transfer of agency takes place after the period where the instruction fee in 1(b) has elapsed. It is a fee which allows the new incoming solicitor to review the file and read in to the case so that they are up to speed.

You cannot charge the transfer fee where you have exercised your right to submit an advice and assistance account instead.

Examples of when the fee is and is not payable:

• Solicitor A moves to Firm B and continues to act for the client – no fee payable
• Solicitor A moves to Firm B, client elects to stay with new incoming solicitor at Firm A – fee payable as there has been a transfer of legal aid to a different solicitor
• Solicitor A moves to Firm B, client stays with new solicitor at Firm A but then transfers back to solicitor A/Firm B – fee payable as there has been a transfer of solicitor.

Where work done under any paragraph or sub-paragraph of the Table of Fees is only partially completed, the fee payable in respect of that work must be apportioned equally between each solicitor involved.

Where there is a transfer of agency the solicitor from whom agency is transferred is entitled to be paid the whole fee for completed work they do.

No fee is chargeable for an incomplete block, unless the incoming solicitor completes it, in which event the total fee is chargeable, payable in equal shares to the solicitors who have undertaken the work.

For example, if two solicitors have undertaken work chargeable under a particular block payment, the fee will be divided on a 50/50 split basis; three solicitors on a one-third split, and so on.

If we receive a claim which includes a charge for a partially completed block it is likely to be challenged unless we are aware that the block of work has been completed (e.g. we have received the incoming agents account).

We cannot allow fee for a partially completed block in any other situation as we will not know whether the block has been completed or the number of solicitors who are due a share of that block fee.

The legislation prevents us from considering a request for fees to be split between solicitors in any other manner other than in equal shares.