https://www.slab.org.uk/guidance/outlays-2/
https://www.slab.org.uk/guidance/outlays-2/
There are no prescribed legal aid rates for outlays in either the Legal Aid Act or Fees Regulations.
However, we publish recommended or approved rates in some cases which you should apply, where appropriate.
You should refer to the separate policy statement, decision makers and legal aid guidance when charging outlays in relation to spoken language interpreters and translators.
We must assess any outlays that you charge in your account in line with our statutory obligations and in accordance with the Act and Regulations.
“A solicitor shall be allowed the following outlays, due regard being had to economy:
(a) travelling expenses actually and reasonably incurred by himself or his clerk in connection with travel for which a fee for travelling time is chargeable and, in calculating the travelling expenses due, paragraph 16(5) of the notes on the operation of Schedule 1A applies to those expenses as it applies to the fee for travelling time;
(b) fees paid to witnesses who are not on the Crown list, which fees shall not exceed such sums as are considered by the Board to be reasonable having regard to the sums payable from time to time by the Crown to witnesses of the same categories; and
(c) any out of pocket expenses actually and reasonably incurred, provided that without prejudice to any other claims for outlays there shall not be allowed to a solicitor outlays representing posts and incidents.
(2) Where a witness is a person giving evidence of fact or expert evidence and value added tax is chargeable in respect of giving that evidence, and the witness adds an amount equal to the tax chargeable to his note of fee, the amount so added may be allowed to the solicitor as an outlay.”
“outlays actually, necessarily and reasonably incurred in connection with that matter, due regard being had to economy, provided that, without prejudice to any other claims for outlays, there shall not be allowed to a solicitor outlays representing posts and incidents.”
The general principles are that outlays must be:
before we can make payment.
We cannot pay for outlays which were anticipated but have not yet been incurred.
We can however pay for outlays incurred but not yet paid subject to you providing an invoice in support of the claim.
In the absence of prescribed fees for outlays it will frequently be necessary for us to exercise our own knowledge and experience when assessing whether an outlay is reasonable either in terms of the time spent and/or amount claimed for the type of outlay incurred.
An “outlay” is an amount of money spent on something.
The Auditor of the Court of Session in the cases of CA, 30 March 1998, and decisions of DB & CW and SM & RM, 21 January 2000, held that an in-house service provided by the nominated solicitor (or firm) cannot be an outlay, but instead must be a fee.
An outlay will involve payment to a third party for a service.
This approach was upheld by Lord Coutts in the Hearing on the Note of Objections by a Report to the Auditor in Thomas Crooks, wherein it was stated at [11] “In my judgment there is no justification for describing something which has not been outlayed as an “outlay’”.
The exception to this general rule is where mileage outlays are payable in respect of reasonable travel by you, or to another solicitor who has been entrusted to act by you.
In such cases a mileage allowance is recoverable in lieu of the out of pocket expenses that will have reasonably been incurred.
This guidance is not intended to be an exhaustive list of outlays which may be chargeable and the aim is to cover the most common outlays that will typically be charged for in accounts.
An outlay is incurred when the work is done in respect of which the fee is claimed or the liability to meet the outlay is incurred.
Lord McCluskey, in an Inner House decision Drummond & Co v Scottish Legal Aid Board 1991 SLT 158 observed:
“What is the point in time when such fees and outlays are “incurred”? Or, to put it another way, at what point in time does the judgment fall to be made as to whether or not they are “properly” incurred?
The answer to that must, in my opinion, be that the fees and outlays are incurred when the work is done in respect of which the fee is claimed or the liability to meet the outlay is incurred; and it ought to be possible at that moment to judge if they are being “properly” incurred.
That appears to me to be the same point in time as is contemplated by section 10(1) (b), where it is provided that once the solicitor realises that he has gone above the statutory limit he “shall not give” the advice or assistance so as to exceed the limit.
At that stage if he does not have the approval of the board he has a choice. He can cease to render advice and assistance until he obtains approval.
Alternatively, he can opt to render further legal advice and help to the client; but it will not be “advice and assistance” within the meaning of Pt. II, and the client will not be a “client” as defined in s. 6 (1), because by giving the legal advice and the help the solicitor has, so to speak, stepped outside s. 10 (1) (b) which prohibits him from giving Pt. II advice and assistance to a Pt. II client when the cost of doing so will exceed the statutory limit, and the board has not approved.”
We must assess outlays based on the level of information available in the supporting material that you produce with your account.
If you fail to provide us with an invoice showing when the work has actually been incurred our default position is that a cost is incurred on the date the work is instructed.
That is only displaced if there is clear evidence that the cost was not in fact incurred until a later date.
We must be satisfied that the outlay has been incurred at a time where you have the necessary cover and sufficient expenditure in place before we can make payment.
You must have our prior approval to instruct an expert, including sufficient authorised expenditure to pay for a report if necessary, before instructing the expert.
If you are employing an expert under advice and assistance and we grant an increase under a template, but the template does not include the cost of an expert, you still need our prior approval for the report (although you may be able to apply using an additional template) where available.
It is very important to remember that when you apply for an increase in authorised expenditure to cover the cost of the expert, the cover you request should always be sufficient to include the cost inclusive of VAT.
That is different to where prior approval is sought under legal aid the costs that we approve will ordinarily be net of VAT.
More information on when you require our “prior approval” can be found in the separate policy statement(s) and guidance issued by the respective Applications department.
Any increase in authorised expenditure or request for prior approval that we allow is based solely on the information that you give us in the request, including likely costs.
In approving that request, we are not acknowledging that any estimated costs are reasonable or the fees correct, and payments to an expert will be subject to the usual scrutiny of the Accounts Department based on the work that was actually and necessarily done and the appropriate fees for that work.
The sum that we authorise is simply an upper limit of expenditure within which you can proceed to instruct an expert.
It is not a guarantee that we will pay a claim to that level. You still have to justify the expenditure in your account.
Before instructing an expert witness for the purpose of preparing a report, you should:
We have to be satisfied at the payment stage that all the work done and the fees the expert has charged, as with your own fees, are reasonable but you can reduce your risk by adhering to the above advice.
If you have any reservations concerning the final invoice from the expert, for example a referral charge has been made or the charges do not conform to your instructions, these matters should be raised with the expert before making payment.
You may also wish to speak to one of our accounts staff at that stage.
You are not obliged to pay a witness more than the maximum limit if you have clearly drawn the witnesses’ attention to it and the fact that we will not pay more than that figure.
Where an expert has been told of the limit, but it has been unavoidably exceeded because of circumstances beyond their control, you may in appropriate circumstances be able to obtain retrospective approval for the additional costs although that is not an option that is open to you if the expert is employed under a grant of advice and assistance or ABWOR.
You are responsible for settling all outlays incurred.
In advice and assistance cases where the limit of authorised expenditure is insufficient to cover the total fees and outlays, we will currently pay the outlays (inclusive of VAT) in priority to your fee unless you instruct us otherwise.
We define an expert as a person whose role is to speak primarily to opinion evidence, rather than to evidence of fact alone, and who has the knowledge, professional skills, and qualifications which enable them to give such an opinion (and/or undertake relevant associated steps).
Where the work has had the necessary “prior approval” the relevant Applications department should have already approved the work that is to be done, the estimated number of hours expected to do the work and hourly rate and/or cost of the work before you can make payment.
In most cases our assessment ought to be relatively limited to ensure that:
Where the expert witness has been instructed to prepare a report you can cite the expert to attend court.
No further prior approval is required for the experts attendance and it is therefore unnecessary for you to seek any separate approval.
When work has been done the expert or witness must provide you with an invoice or claim form.
We will ordinarily require the following key information in order to assess a claim:
The invoice must also detail the dates the work was actually undertaken and, where applicable, the expert’s VAT registration number.
This is essential as payment is based on when the appropriate legal aid cover is in place. If the work was carried out at a stage where you have not obtained the necessary cover we will not be responsible for the experts fees.
In the absence of this information we will almost certainly have to delay making payment until you are able to provide this.
We will not ordinarily pay for:
Where the prior approval of an expert has been authorised using the criminal applications template procedures a fully itemised invoice is not always necessary for the following types of expert report:
In some limited circumstances you do not require an invoice to be broken down. These are:
A professional witness is ordinarily a witness practising as a member of the legal, medical or accountancy profession or member of another professional body who has been cited at court to speak to matters in their professional capacity.
For example, a doctor who gives evidence in a professional capacity (for example, regarding the extent of injuries suffered by their patient) is giving professional evidence.
Whereas, if they give evidence as an ordinary witness of fact (for example,b as a witness to an assault on the way home) they should be reimbursed as an Ordinary witness although that may depending on the circumstances amount to the same level of payment.
A professional witness can recover:
The professional witness is not entitled to be paid for both loss of income and the cost of the locum.
In addition, travel and accommodation and subsistence would be payable in accordance with the guidance provided below.
A person attending Court as a witness called or reasonably intended to be called to give evidence, is entitled to recover their expenses, where appropriate, for:
Receipts should always be produced in support of any claim.
Where a witness is a seaman or off-shore worker is cited to attend court and detained ashore to give evidence then all reasonable steps should be taken, wherever possible, to minimise the time that they remain onshore.
Witnesses who are on the Crown list of witnesses
It is very important that you are aware that we can only pay you in respect of witness costs as per Regulation 8(b) of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, which reads as follows “fees paid to witnesses who are not on the Crown list, which fees shall not exceed such sums as are considered by the Board to be reasonable having regard to the sums payable from time to time by the Crown to witnesses of the same categories”.
Accordingly, any outlay from a witness on the Crown list would not be recoverable under legal aid. This occasionally arises where a Crown witness seek to impose a charge for the taking of a precognition or where enquiries are made in relation to aspects of the Crown expert report.
There is no provision for payment of a legally aided client’s travelling expenses for attending court.
Those are a personal expense to be borne by the assisted person. It is a condition of client’s bail condition to appear in court.
Other people, in certain circumstances, may be entitled to payment of allowances in line with the rules for ordinary witnesses where the costs are not otherwise to be borne by the court or any other party.
This is where the person attends court to assist the witness in giving best evidence.
The solicitor must obtain our prior approval to cover the cost of any such person before attending court.
Examples include but are not limited to the following:
No allowances, expenses or fees can be paid to:
Where the citation of an expert or professional witness is countermanded you may receive a claim in respect of a cancellation fee.
The Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) used to prescribe payment rates and rules in relation to cancellation fees for professional witnesses when cancellation was:
Although those provisions no longer apply they helpfully set out some guidelines as to the circumstances where a cancellation fee may be reasonable.
In legal aid cases it is a matter of fact and in law that the solicitor is liable for payment of a witness fee.
We are not therefore bound to make payment of the experts charges as per the terms and conditions (T & C) of their employment.
Our statutory obligation is to make payment of a reasonable fee.
Factors that we will take into account when considering what, if any, cancellation fee is payable include:
Mileage is payable in line with HMRC guidance on “Travel – mileage and fuel rates and allowances”.
Public transport should be used where it is more economical to do so. The test of “economy” requires to be considered in the round rather than simply a comparison of the outlay that would be recoverable.
For example, the cost of a bus fare may well be more economical than travelling by other means but if that increases the overall time it would take to travel then both component parts must be taken into account before reaching an informed view as to the most economical method of travel that is payable.
Rail and air fares are payable at standard rates only.
If you elect to travel by first or business class you can, of course, elect to do so if you so wish but we will only reimburse you an outlay equivalent to the standard fare rate.
Reasonable accommodation and subsistence rates are payable in accordance with the prescribed rates set by regulation for counsel. This provides parity between solicitors and counsel, so that all providers are subject to the same rate. Those rates also apply to witnesses where appropriate.
Subsistence includes reasonable expenditure on meals and beverages, but not items such as cigarettes, alcoholic drinks, newspapers, etc.
As a matter of policy although we recommend that solicitors (or witnesses) should, wherever possible, try and secure accommodation within the limits that apply to counsel we may exercise our discretion and allow a higher amount, on cause shown, where you can demonstrate that it was not possible to secure accommodation within the prescribed limits that have been set for counsel.
Where a higher sum is being sought you should take all reasonable steps to secure accommodation and subsistence as close to the limit as possible.
We may ask, where necessary, for comparative quotes or details of the steps that have been taken to secure the most economical accommodation available.
If a witness employs a baby-sitter or child minder, they will be reimbursed only if these services are not normally required and have only been engaged as a result of the attendance at court.
If the child minder is registered with the Local Authority the child minder’s registration number is required.
Subject to the usual rules of reasonableness, the hourly rates payable to registered child minders and non-registered child minders will be allowed at the following rates:
Where the witness provides a receipted invoice from a nursery, the amount stated on the invoice will be paid.
Where counsel are instructed in a legal aid case the work that they undertake is not paid as an outlay.
The relevant legal aid fees regulations make separate provision for counsels “fees”.
Payments, or any negotiations, in relation to their fees or outlays will be adjusted directly with counsel or their respective clerk as the case may be.
It is important to remember that “counsel’s fees” do not apply where counsel has been appointed as a commissioner and the legally assisted party has been found responsible for payment.
In any such case those charges constitute an outlay in the solicitors account.
Counsel is entitled to a reasonable fee in accordance with the statutory test of taxation for outlays.
There is no similar statutory provision for counsel’s fees under advice and assistance or ABWOR and in such cases counsel’s fees must be charged as outlays in your account.
Any payment and adjustment of counsel’s fees require to be negotiated like any other outlay directly with you.
Although there are no prescribed rates for counsel, we will ordinarily expect counsel’s fees to be claimed and paid having regard to Schedule 2 of the Criminal Fees Regulations.
Although this is relatively unusual in legal aid or advice and assistance cases where a report has been obtained via an agency (that is, this would most typically be in respect of a medical report), as opposed to directly via the expert, you should not pay for any administrative arrangement charge which has been levied by the agency as that is not a reasonable charge that should be passed on to the legal aid fund.
Payment must be restricted to the actual cost charged by the expert subject to that, of course, falling within the limit which has been approved, where appropriate.
This is consistent with the Auditor of Hamilton Sheriff Court decision in the case of SG, 4 August 2017, and the general taxation practice applicable in party and party taxations.
A solicitor requires our prior approval to undertake work which is:
Unusually large expenditure is work in its entirety that exceeds:
It is possible that the work that has been approved will not involve the payment of any outlays.
For example, it is quite common that the work that has been the subject of prior approval will consist of solicitors and counsel fees only but where outlays have been incurred we will assess those in line with any approved limits that have been set at the Applications stage, failing which, in accordance with the legal aid regulations and information in this guidance.
Court dues are primarily, but not exclusively, an outlay associated with civil proceedings.
In United Kingdom Supreme Court Proceedings (UKSC) court dues, where appropriate, are not exempt and they will be chargeable as an outlay in the legal aid account.
The fees payable are prescribed in Annex 2 of Practice Direction 7 of the UKSC.
These costs are chargeable as an outlay, where appropriate, except where our prior approval is required in circumstances where the costs are likely to exceed £2,000.
The National Union of British Sign Language Interpreters provide guidance only on the fees that NUBSLI members are likely to charge and apply to work carried out remotely or in person.
We will assess outlays in respect of Messengers at Arms and Sheriff Officers in accordance with the relevant Act of Sederunt (Fees of Messengers-at-Arms and Sheriff Officers) that is applicable at the time that the work is done.
You should however only ever incur these outlays where it was not possible to effect service by post or by any other alternative and more economical means.
In UKSC proceedings where an external duplicating agency is instructed for the preparation and lodging of hard copy and electronic bundles in accordance with the relevant UKSC practice directions those costs are recoverable as an outlay, subject to the normal tests of reasonableness.
There is no definition of ‘posts and incidents’ provided in the statutory framework.
We have discretion in deciding what is covered as part of these overheads.
We have discretion in how to apply the taxation standard for different classes of work claimed by solicitors.
There is no prescribed table of fees for any types of outlays.
Expenses which may be classed as overheads are generally not payable.
Our policy is to consider courier costs to be unreasonable unless it can be reasonably stated that the firm’s usual delivery service and electronic means of delivery were not reasonably practicable to use.
The circumstances which meant no other arrangements could be put in place must be outwith the control of the solicitor.
The factors we will consider in requests for payment of courier costs are:
When making a claim you must provide a sufficient level of information in support of why it has been reasonable for a couriers cost to be incurred in the particular circumstances of the case.
An invoice must always be provided in support of any claim.
Where you make a claim in respect of a couriers charge you must justify the claim by addressing one or more of the following factors:
The over-riding factor in considering whether the use of a courier is necessary is to determine why you could not use your normal legal delivery service such as DX or Royal mail, etc.
If it is established that the nature, volume etc. of the material involved specifically required the use of a separate courier service, we will have regard to the relevant factors below.
Depending on the source format of the material involved and/or the ability to transfer it electronically, you are reasonably expected to send it electronically (password protected where necessary).
You must provide details to clarify why the physical transportation of the material by courier was necessary.
Where the volume of papers sent were too large to be handled by your usual delivery service or by other postal means then we may consider payment of a reasonable courier outlay.
For the purpose of this guidance, there is no specific definition of what constitutes ‘voluminous’ – and it is your responsibility to quantify the amount with particular reference as to why you were unable to send the papers by your usual methods.
Material such as medical and social work records are by their nature usually considered as being of a sensitive nature.
However, that in itself does not mean that courier charges will be payable as an outlay.
If you can justify that the specific nature of the documentation could not be handled by your delivery service, or by other secure postal means, then consideration may be given to paying a reasonable courier outlay.
In situations where it can be established that there was no delay on your part in sending the papers and if the recipient required them sooner than the service provided by your usual delivery service or by other postal means, then we may consider paying a reasonable courier outlay.
There may be occasions where the recipient lives in an area which is not served by your usual delivery service(s).
If you can explain the circumstances why this applies in your case then we may consider payment of a reasonable courier outlay.