Framing

This guidance covers the basis of charging for the framing of documents with the exception of the framing of precognitions which is covered by separate guidance.

It includes affidavits for which there is no discrete prescribed fee in criminal legal aid.

It is very important to note that a document must be distinguished from a letter as they both have their own definitions in the regulations, separately prescribed fees and their own policy statements and guidance.

Court documents should be concise. The overriding requirement is to give fair notice: the purpose of court applications is to give notice of the essential elements of the case to the court and the other parties and the content should be as brief as the issues will allow.

Lengthy documents ought to be avoided, wherever possible, and you must always provide a detailed narrative in support of any claim where the charge is unusually lengthy.

The framing of a “document” is, in the main, chargeable depending on whether it is of a ‘non-formal’ or ‘formal’ nature, subject to the exceptions that are listed below:

• a higher fee is allowed for the framing of a non-formal document; and
• a lower fee is payable for a formal document.

The framing of a document is charged per “sheet” and covers the work involved in drafting the document into the style required by the court.

Regardless of the type of account a sheet is defined for the purposes of the fees regulations as consisting of 250 words or numbers.

The fees for documents are payable at standard rates to reflect the length of the document.

It is recognised that in any given case there is likely to be a mix of straightforward and more complex documents.

The standard fee principle operates on a ‘swings and roundabouts’ basis to reflect that over the range of legal aid cases that you deal with in any given year the rate should provide reasonable remuneration.

We will not pay for commentary that has simply been “cut and pasted” from counsel’s opinion and then incorporated into an application to the court which is consistent with the former Auditor of the Court of Session decision in 2018 in the case of DT.

As a general principle the framing charge that we will allow is based on the final version of that document and we will not allow any time or revisal charges that have been made to any “draft” document.

This is consistent with general taxation practice and was upheld by the Auditor of Dumbarton Sheriff Court in 2009, in the case of WC.

We will exercise our own skill, knowledge and experience to assess whether the framing charge:

• was reasonable for the proper conduct of the case due regard being had to economy; and
• was reasonable in amount for the type of case that you are acting.

If the framing charge meets both tests we will pay at the relevant prescribed rate.

If the charge does not meet both tests we will reduce the charge and/or invite you to provide further information in support of the claim.

The difference between a formal and non-formal document is dependent on the nature and content of the document.

Documents which require little thought, legal expertise or specialised knowledge such as inventories, intimation forms, title pages etc. are chargeable at the formal rate.

Documents such as an application to the sheriff for a stated case, motions and minutes, etc. would be chargeable at the non-formal rate.

The requirement for Crown and defence to communicate, the participation in, and creation of, a joint written record as to preparation, and the conduct of First Diets has been in place since 1 December 2015.

The work involved in the Joint Written Record can significantly vary from case to case.

In some cases it can be fairly swiftly and succinctly framed, and in others the work of getting to the point where the defence section is complete can be more involved. In accounts assessment terms, in some cases the work is accurately described and addressed by the framing charge provided in the table of fees.

In other cases, the work is more akin to work which would involve a time-based charge. The work which has already taken place in the case prior to the time when the Written Record is produced is separately chargeable.

In a sheriff and jury matter in which counsel is not instructed, we will allow a time-based charge of up to one hour for the work related to the completion of the Joint Written Record in circumstances where you elect to claim a fee on that basis as an alternative to the standard framing charge (based on sheetage) which remains available.

No fee is allowable in criminal proceedings as there is no requirement to provide details in relation to matters relating to expenses or any matters relating to the issue of property being recovered or preserved in relation to the proceedings.

As a general rule no separate charge will be allowed for the framing of a file note.

That is enshrined in paragraph 4(c) of the Notes on the operation of Schedule 1A.

That charge is ordinarily included within the time charge which has been allowed for the meeting or telephone call.

A file note remains on your file for further use.

The exception to this general rule is in a case of complexity and importance where file notes are framed during a consultation, in particular where an Edinburgh and local solicitor is engaged, but only one solicitor attends the consultation and the relevant file note is shared with the solicitor who was not in attendance.