Option to accept judicial expenses recovered

Regulation 3(3) and 3(4A) of the Civil Fees Regulations makes provision that allows counsel’s fees and outlays recovered by virtue of an award of expenses in favour of a person to be paid based on the sums which have been recovered in circumstances where the solicitor seeks payment at legal aid rates.

Regulation 3(4) clarifies that where the solicitor elects to accept the judicial expenses recovered in lieu of a legal aid payment that also include counsel’s fees, where appropriate.

 (3)   Where fees and outlays are recovered by virtue of an award of expenses in favour of a person who has received legal aid or of an agreement as to expenses in favour of such a person—

 (a)   accounts of such fees and outlays, where they are taxed, shall be taxed as if the work done for that person were not legal aid; and

(b)   the Board may, at the request of the solicitor or any counsel acting for the person in receipt of legal aid at the conclusion of the proceedings, and subject to paragraphs (4) to (6), instead of making payment to that solicitor (or counsel as the case may be) in accordance with paragraph (2), pay to the solicitor (or counsel as the case may be) the amount of fees and outlays so recovered.

(4A)   Where counsel requests payment in accordance with paragraph (3)(b) in a case where the solicitor last acting requests payment in accordance with paragraph (2)—

(a)   the solicitor’s fees and outlays shall be paid in accordance with paragraph (2);

(b)   the Board shall determine as accurately as is reasonable what part of the fees and outlays recovered represents fees payable to any counsel;

(c)   the solicitor and counsel shall supply the Board with such information as the Board may require for the purpose of determining the sum referred to in paragraph (b);

(d)   subject to paragraph (5), the Board may make payment to counsel of the sum determined in accordance with sub-paragraph (b) if satisfied that it is reasonable to do so having regard to all the circumstances including —

(i)   the respective roles of counsel and any counsel previously acting for the person in receipt of legal aid;

(ii)   any sums paid or due to be paid to any counsel previously acting for the person in receipt of legal aid;

(iii)   the sum that would be paid to counsel in accordance with paragraph (2); and

(iV)   any resultant cost to the Fund or to the person in receipt of legal aid.

Where solicitors accept the judicial expenses recovered

Where a solicitor requests payment of the judicial expenses recovered counsel must also be paid based on the amounts that have been recovered by way of judicial expenses.

Where the solicitor and counsel elect to accept the judicial expenses recovered, the solicitor must provide us with a breakdown of how payment is to be made, including a note of any amount to be paid to counsel.

As a matter of routine this will normally consist of a global figure to be paid in respect of all counsel who have been instructed in the case.

We will rarely, if ever, be made aware of the actual sums that have, and have not been recovered, in respect of individual counsel.

We will make payment to the solicitor in accordance with the breakdown they have provided after deduction of any payments to accounts that may have been made.

The solicitor is responsible for settling any outstanding counsel’s fees.

Where solicitors accept legal aid payments counsel may accept the judicial expenses recovered

Where a solicitor requests payment at legal aid rates counsel may elect to be paid the judicial expenses recovered, subject to all of the conditions prescribed in regulation 3(4A) being met.

It is important to note that the responsibility for accepting the judicial expenses rests with counsel acting for the person in receipt of legal aid at the conclusion of the proceedings.

The counsel acting at the conclusion of the proceedings should take whatever steps may be necessary to consult with all other counsel who have been instructed in the proceedings before electing to accept the judicial expenses recovered.

We cannot under any circumstances make payment of the fees partly on the basis of the fees recovered judicially and partly on the basis of legal aid.

The election to accept judicial expenses covers all fees and outlays in those proceedings including, where appropriate, any pre litigation expenses (e.g. an opinion provided under advice and assistance).

Information that must be provided in support of a request for judicial expenses

We can only make payment where:

• we are able to determine as accurately as is reasonable what part of the fees and outlays recovered represents fees payable to any counsel
• the solicitor and counsel shall supply us with such information as we may require for the purpose of determining the sums recovered.

In order to make a payment of judicial expenses we must be provided with either

• a copy of the taxed judicial account of expenses together with any written decision, where appropriate; or
• where the judicial account is adjusted and agreed between the parties a copy of any correspondence between the parties reaching agreement on the judicial expenses recovered.

It is recognised that the legal representatives may reach a ‘global agreement’ on the amount to be paid by way of  judicial expenses to avoid the time and additional expense involved in taxation

In the absence of clear documentary evidence to establish the sums payable we will, where possible, adopt a pragmatic approach to identify the sums that remained in dispute prior to the global agreement being reached and apply a pro-rata approach to the adjustment of solicitors and counsels fees, with a view to establishing the sums recovered.

For example:

• the judicial account has a value of £10,000 and a global agreement is reached at £9,000
• the sums in dispute prior to the global agreement being reached was £1,000 solicitors fees and £2,000 counsels fees
• the £1,000 which has been restricted will be apportioned on a 1:2 ratio (e.g. £333.34 solicitors and £666.66 counsel).

If that approach is not acceptable to you (or the solicitor) then we must be provide with a sufficient level of information that would allow us to reach an alternative view.

Legal Aid and Judicial Expenses under a single grant of legal aid

Where a single grant of legal aid covers more than one set of proceedings and those are treated as distinct proceedings in terms of regulation 4(1) of The Civil Legal Aid (Scotland) Regulations 2002, it may be appropriate to accept the judicial expenses which have been recovered in one set of proceedings but not the other.

The most common example of this arising is where an appeal on a procedural matter (interim appeal) is covered under the original grant of legal aid, subject to an extension of that grant being allowed.

Where expenses are recovered in respect of the interim appeal only and the first instance proceedings are disposed of with a finding of no expenses due to or by either party, counsel may in circumstances where the solicitor elects to submit a legal aid account, exercise their right to claim for judicial expenses for the interim appeal and legal aid for the substantive proceedings.

In such cases counsel must still satisfy all requirements of Regulation 3 of The Civil Legal Aid (Scotland) (Fees) Regulations 1989, above, when making their claim for judicial expenses.