https://www.slab.org.uk/guidance/letters-3/
https://www.slab.org.uk/guidance/letters-3/
| Advice & Assistance | Schedule 3, Part II | 1B & 1C |
| ABWOR |
Schedule 3, Part I
|
3(iv) & 4(ii) |
| Legal Aid |
Schedule 5 Civil Fees Regulations
|
4(g) & 5(f) |
For the purpose of this guidance a reference to ‘letters’ includes email communications.
A letter should be distinguished from a document as they both have separately prescribed fees, definitions and their own guidance.
Payment will be made for written correspondence actually and reasonably done, due regard being had to economy and we will assess each letter on its own particular circumstances.
We will allow a letter, where a letter is necessary, to the extent that the advice or information is set out briefly, in plain English.
The letter should focus on the specific, material issues arising from the subject matter of the advice giving rise to the letter without unnecessary repetition or wordiness.
We do not consider it necessary, as a matter of course, to send your client:
A number of issues can arise in the assessment of charges for letters in the course of the giving of advice and an understanding of our position, as third party paying, may reduce the need for requests for further information or restrictions being made of your accounts in this area.
The framing of a letter/email is payable depending on whether it is of a non-formal or formal nature.
A formal letter need not be short.
The difference between formal and non-formal letters is, to a great extent, dependent on the content.
Where a letter is appropriate it should be:
A letter that requires little thought, legal expertise or specialised knowledge or contains little in the way of substantive commentary such as pro forma style letters, similar letters, intimations and letters of enclosure would normally be chargeable at the formal rate.
On the other hand a letter which contains original thought, imparts advice or otherwise advances the case would be chargeable at the full rate.
Non formal letters are assessed having regard to their content and whether, in the context of the preparation of the case, the letter is necessary and reasonable.
That also extends to the length of the letter.
We may be satisfied that a letter was reasonable and necessary but we may still question and challenge the length of letter sent as being unreasonable.
For example, it may appear reasonable, based on the detail provided, to suggest that a two page letter is payable rather than a three page letter.
A letter is payable on a ‘per page’ basis, a ‘page’ being 125 words or numbers.
The word count of the letter is limited to the body of the letter and does not include the heading, salutation, signature line etc.
While a word-count is always helpful, it does not necessarily determine the number of pages that we will allow.
We require to be satisfied that the cost of a letter is reasonable and we will only allow chargeable content to the extent to which the advice or information is relevant to the advice being given.
We adopt the same approach to a lengthy non-formal letter as to any other but, in general terms, the longer the letter claimed then the more information you will be expected to provide by way of justification, unless you have provided us with a copy of the letter or we are able to glean from the account, or any other supporting material, information that would support the need for a lengthy letter.
We do not require sight of all letters charged but we may request them if necessary – most likely in the event of an exceptionally lengthy letter being claimed.
However, that should be the exception and this can often be avoided if you include a sufficient level of detail within the relevant account entry to support the work charged.
This will allow us to make a considered assessment of the charge.
We are essentially concerned with the reasonableness of the letter charged which is very much a subjective consideration having regard to the context of the account presented and detail that you have provided.
Any letter sent should be reasonable and necessary and advance the case.
Accordingly, with this in mind it is perhaps easier to give examples of the type of correspondence which we may challenge rather than those considered payable.
As a general rule we have historically challenged claims for a letter of engagement purely setting out the terms of business on the basis that they are ordinarily written as a matter of good professional practice and they do not routinely contain information which could be considered as advice to the client.
By their very nature they tend to be of a pro-forma style and are used effectively as a risk management tool to minimize the risk of misunderstandings between solicitor and client, in addition to covering a range of generic matters in relation to housekeeping, GDPR, costs and clawback, where appropriate, etc.
It is recognised however that in modern times a prudent solicitor is required to send a terms of business letter that is tailored to the individual client and in such cases you may charge a concise one page letter except where the letter is not required, in terms of the Law Society of Scotland’s rules in relation to client communications, which is:
Legal aid or advice and assistance is granted to the assisted person only and, ordinarily, no charge can be made for any correspondence/advice given to relatives etc.
It may however, be necessary in certain circumstances for letters, or telephone calls to be sent to a third party eg parent, social worker etc.
This would normally arise where the assisted person is usually a child although it may, on cause shown, be appropriate in other circumstances.
This should be the exception however and where you intend to make a claim for any such letters you should make clear the reasons why it was necessary for such communications to be sent.
A letter sent following a meeting confirming what was discussed and agreed at the meeting is essentially duplication of the discussions and you cannot routinely charge twice for the same matter.
For example, we do not consider it necessary, or reasonable, to send a client a lengthy letter repeating much of the advice given at a meeting, or during a telephone conversation.
We will only allow a charge for non-confirmatory aspects of a letter and for parts which add to views previously expressed or to information given.
However, we may allow a charge for a purely confirmatory letter when the letter was necessary because, for example:
Such letters are generally not considered as necessary given they do not usually advance the case in any material way.
However, there may be occasions where it can be demonstrated, on cause shown, that it was necessary and reasonable to send such a letter and payment can be made at the formal rate.
Typical examples of when payment can be considered would include the following:
We will not pay for a letter “chasing up” the client: the onus is for the client to maintain contact with you.
Charges for a letter asking the client “to call” will ordinarily be disallowed unless something material has taken place that justifies a meeting or further advice being communicated to the client.
Similarly a reminder letter to the client is not generally considered a reasonable charge if nothing has occurred to advance the case since you last communicated with the client.
If it can be demonstrated that a reminder letter was reasonable in the particular circumstance of the case and perhaps that reminder letter resulted in a material outcome, it may be reasonable to allow a charge. Continuous reminder letters/letters ‘to call’ will however be disallowed.
Reminder letters in other situations and particularly to other parties may be reasonable and necessary, on cause shown.
For example, when seeking information to comply with time limits imposed by the courts.
Payment can also be made where:
A pro-forma letter is a reference to a style letter, usually accessible electronically, containing general content of a standard nature relating to various subject matters on which a firm may provide legal advice.
They are not framed for a particular client, but in anticipation of giving advice or providing information to a client and are retained as a resource.
They can be accessed and tailored on a regular basis to reflect an individual client’s circumstances.
As with any other aspect of an account, we require to determine whether this piece of work is actually, necessarily and reasonably done, due regard being had to economy against different practices and ways of charging for a letter on the part of solicitors.
It is not possible to state what value we may put on a letter except in general terms.
In the course of assessing a letter on its content, and not solely by reference to the number of words and numbers, we must have regard to the fact that such content has not actually been framed for the client.
Nor is it considered reasonable to treat such standard content as the same, for purposes of payment, as that of content crafted by a solicitor in the provision of advice to that client in the particular circumstances of the case.
Pro-forma letters, are quite properly widely used by the profession, and not only offer clear efficiencies in practice but reflect the test of due regard to economy.
Our position is that they should be adopted wherever practicable, especially where a firm is undertaking the same type of work for clients.
If you choose to frame an individually composed letter to a client, where this is not necessary and a pro-forma letter could be used, we may restrict the fee to a level that we consider reasonable in the context of the advice.
There have been a number of legal aid taxations in relation to letters which almost exclusively, or substantially, contain commentary which is similar or identical in nature.
Although there has been competing decisions from auditors over the years they all consistently take the view that those types of letter are not chargeable in their entirety at the non-formal (higher) rate.
It was noted by Sheriff Galbraith, in the Note of Objections in connection with the account of DL dated 15 March 2017, that, “There are two rates provided in the table for letters and the auditor did not apply either of these. Instead he determined an amount he considered to be “reasonable”.
The observations of the sheriff are to the effect that an auditor is primarily required to allow a reasonable fee, not fetter his or her discretion in a strict application of structure and level of fees in the Tables of Fees.
Our approach will be to assess the account to the extent that providing the letter is relevant and reasonable in the circumstances:
Where letters similar in content are sent to several recipients on behalf of the same client, we will allow the first letter at the higher rate and the remainder at the formal rate.
Equally, if a paragraph or paragraphs in separate letters is essentially the same, eg the same reference to the client’s position or to the same piece of legislation, we may only allow a formal charge for that element of the letter, as the content has not been separately framed in respect of each letter.
If you choose to frame an individually composed letter where this is not necessary, we may restrict the letter to a charge that we consider reasonable.
Sheriff Galbraith, in a Note following a Note of Objections in connection with the account of DL dated 15 March 2017 held that the auditor was entitled to look at other letters in determining what was reasonable remuneration.
A letter will generally be disallowed if its content could reasonably have been included in another letter that was sent on the same day.
That will not be the case if a second letter is drafted following a significant change of circumstance on that day (or otherwise after dictation of the first letter).
When material is received electronically (eg productions) and this in turn requires to be forwarded to counsel, this will in all likelihood involve a simple email of enclosure to that counsel.
You may receive material separately over the course of a day.
Where you seek to charge for subsequent emails to counsel attaching the recently received material our position is that such charges will ordinarily be restricted to one letter of enclosure for that day.
The logic being that you could reasonably send a single email with all disclosure received in any given day at the end of the day or beginning of the next.
That may not be the reality of how solicitors communicate with counsel but a reasonable allowance is to pay for one letter of enclosure to each counsel.
This would include a letter enclosing a document that you had previously forgotten to send or otherwise to address a matter that should have been dealt with previously.
Subject to cause shown, such charges will ordinarily be disallowed.
We will allow a charge for a letter informing the client that you are closing the file.
The time limit for lodging an account, however, runs from the completion of the last piece of what can properly be called the giving of advice or assistance or representation, and not from the date of a letter stating that you are closing the file, the giving of advice or representation having already concluded.
If you are referring to or quoting from legislation, or rules, you should attach the relevant parts of the legislation or rules to the letter as an appendix or sheet apart, charged at the sheetage rate (250 words or numbers per sheet).
You are still drawing the information to your client’s attention but in a way consistent with the test of due regard to economy.
Alternatively we may allow such content within the body of the letter, but still at the sheetage rate.
Such material has not been framed, which is the basis of the prescribed fee for a letter.
A solicitor undertaking legal aid and advice and assistance is presumed to have a working knowledge of the legal aid regulations under which they are acting, and while we are always pleased to assist, we do not expect to be billed for it.
It will not normally be a reasonable charge against the Fund.
We may however allow the charge in circumstances, for example where you require to draw an error to our attention and ensure that it is corrected.
Any negotiations or exchange of correspondence at the accounts stage cannot be paid as this forms part of our entitlement to a free accounting.
There have been some instances where the auditor has allowed a letter but determined that part of the letter only be allowed on the basis of sheetage rather than pages.
One instance was in connection with correspondence to a solicitor in the form of a letter setting out a decision relating to a tribunal or appeal to the Immigration Service which also contained detailed reasons for the decision.
The Auditor Glasgow sheriff court on 14 May 2012, in the case of RG decided that the response by the solicitor, although in the form of a letter was closer to a document containing written submissions.
Our view is that the approaches adopted by the auditor in those cases can be read across so as to apply to any other form of legal aid or advice and assistance.
Whether a letter is allowed on the basis of pages or, in the exceptional circumstances discussed, we still determine what is reasonable in terms of length by reference to relevant content.
Where a letter is sent by way of an email, the appropriate framing charge for a letter is chargeable.
An additional charge shall not be allowed for a forwarding email attaching a copy letter.
Email correspondence is often the preferred mode of contact as it is efficient, economical, instant and accessible.
However that can often result in multiple short messages being exchanged on the same day.
The principle of due regard being had to economy applies to the assessment of any account received so, in the event of such charges being claimed, we must be satisfied that the charges meet that test.
For example, would it have been reasonable to hold a short telephone call or meeting rather than incurring multiple letter charges?
That may not always be possible but it is a factor we may consider depending on the circumstances.
This also applies to ‘text messages’ – see below. (See also ‘Multiple letters to counsel…’ above).
While text messages are not generally in a format that would convey material and meaningful communications with the client, they may be reasonably chargeable on cause shown.
Accordingly the account entry requires to demonstrate the content of the message as being reasonably payable as a letter.