https://www.slab.org.uk/guidance/precognitions-4/
https://www.slab.org.uk/guidance/precognitions-4/
Payment shall be made for chargeable precognition work actually and reasonably done.
A precognition is defined as ‘[a] written statement of the matters which witnesses are expected to give as evidence on oath when in the witness box, and is a guide generally essential for the proper leading of the evidence at the diet of enquiry’.[1]
This is consistent with the decision from the Auditor of Tayside Central & Fife, 30 April 2021, in the case AR & BD.
The purpose and the nature of a precognition must be construed accordingly.
There are very few other circumstances in which we would consider it necessary for you to frame your client’s precognition – one situation may be to accompany a letter of instruction to an expert in a more complex case.
You have your file notes on the general background and your client’s position, the taking of which form part of the time charge for the meeting.
You will be entitled to take a precognition in the usual litigation sense in the event that contempt of court legal aid is granted.
A precognition is a statement normally taken as a precursor to litigation to discover what evidence a person will give in court.
Accordingly we will only pay for a precognition where it contains information relevant to the person’s own version of events, restricted to the salient facts and being representative of what that person would speak to in court.
Any information added which departs from that content or was not provided by that person should not be included and is not chargeable.
This equally applies to precognition(s) taken from the client and furthermore regard should be had to precognitions, and fees restricted accordingly, that include the following examples:
[1] W. J. Lewis, Manual of the Law of Evidence in Scotland, [1925] page 172
Precognitions are charged depending on whether the work was reasonably done by a member (solicitor or solicitor’s clerk) of the solicitor’s firm, a local solicitor or external precognition agent.
In cases charged under detailed fees you may be entitled to charge for the work in relation to:
Where the work is undertaken by you, another solicitor or solicitor’s clerk, within the firm, the time engaged is chargeable at the relevant rates as provided for in the Table of Fees.
The framing of a precognition is chargeable per “sheet”, a sheet being 250 words or numbers.
You do not require to include the precognition itself when submitting your account so it is important that an adequate level of detail is provided in support of the entry.
That detail should include:
Where any such detail is absent from the account we may request it.
In the event we are presented with a charge for an unusually lengthy precognition or perhaps multiple precognitions from the same person (usually for clients only) and the entry does not adequately justify the work or the precognition itself is not included, we will restrict the charge either in full, or in part, and request sight of the precognition(s) in question to allow us to reach a more informed view on the reasonableness of the work charged for.
Wherever possible, firm, specific appointments should be made with witnesses.
Reasonable fees are charged in accordance with the prescribed fees for letters and telephone calls.
The usual practice is that you (or your agent) will send a letter to each of the witnesses at the start of the case advising the witness of their interest and that you will contact the witness with a view to taking a statement.
Thereafter the witness should be contacted (by telephone if possible) with a view to making a firm appointment.
No internal communication instructing the work is chargeable.
While the client’s precognition(s) will in all likelihood be taken by you, adequate justification must be provided if other precognitions are taken by a qualified person.
For example, it may be reasonable for you to personally precognose a witness where the case involves matters of a sensitive nature.
Where the work is undertaken by a solicitor, or is allocated to a solicitor’s clerk, the reasonable time engaged is chargeable at the non-advocacy rate or solicitor’s clerk rate prescribed under the table of fees.
Regardless of who carries out the work, it should be planned and carried out efficiently and with due regard to economy.
For example, wherever possible a precognition should be taken by telephone.
This is of particular relevance in cases where the witness is providing formal evidence or speaking to straightforward matters.
It is appreciated that some witnesses are reluctant to give information over the telephone as they may be unsure who they are talking to.
That difficulty should not arise where you have sent a letter prior to the call advising of your intentions.
Where it is necessary to attend on witnesses who live in the same area, arrangements should always be made to see them concurrently on the same day, where possible.
A situation where you or an agent is returning to the same area on a regular basis to see individuals will require to be justified within the account.
Any travel time (separately charged for) will also be considered based on the detail provided, mileage travelled etc.
Wherever possible, local precognition agents should be used particularly where significant travel costs would otherwise be likely.
Where a local agent is not instructed, justification should be provided to support the fees and outlays incurred i.e. explaining what efforts were made to trace a local agent, or the reasons why this would have been inappropriate.
Some solicitors insist that only their own precognition agents are capable of carrying out this work and that they cannot be expected to use other precognition agents in other parts of the country.
Our view is that reputable solicitors throughout the country use local precognition agents and that if they can carry out the work properly for these solicitors then they are in exactly the same position to carry out the same work for other solicitors.
Solicitors need only contact local solicitors to be advised of reputable and reliable precognition agents to carry out precognition work.
This approach was upheld by the Auditor of the Court of Session in 2003, in the case of HMA v PT.
In cases being funded under legal aid, when a solicitor from outwith the firm or precognition agent is employed, you are entitled to charge for any reasonable communications instructing the work, along with the perusal of the precognitions subsequently received.
Where a local solicitor, agency solicitor or precognition agent is employed the work must be charged as an outlay in your account and will be assessed in accordance with the taxation standard for reasonable outlays.
You must not charge for this work on the basis of the prescribed fees as if you had done the work.
You will be entitled to include in the account a reasonable charge for the perusal of any statements which are received from the precognition agent.
Claims are occasionally received resulting from repeated abortive attendances.
This usually arises where agents attend without a firm appointment having been made, or where the witness fails to keep a pre-arranged appointment.
It is important that the account makes clear what has happened.
The question for the agent must be where to draw the line in his/her efforts to obtain a statement.
It is for this reason that good practice is important in setting about this task, and identifying during the process those witnesses who are important and, quite separately, those who are simply not prepared to give a statement.
Wherever possible, firm appointments should be made with witnesses prior to obtaining a statement.
The usual practice is that you (or your agent) will send a letter to each of the witnesses at the start of the case advising the witness of your interest and that you or a named representative will contact the witness with a view to taking a statement.
This will also identify the agent and make it easier to obtain a statement.
Thereafter the precognition or enquiry agent should contact the witness (by telephone if feasible) with a view to making a firm appointment to ensure that any subsequent attendance is not speculative – a ‘cold call’ – or to take the statement where the evidence is formal and circumstances permit.
If the agent attends at the appointment and the witness is not there they should leave a card advising the witness that they kept the appointment and requiring the witness to make contact.
The agent is entitled to be paid for this visit.
This is what should be done but, of course, it is not always clear from the account whether a card in these terms has been left.
A further letter or telephone call may be in order in the event that the witness does not contact the agent in response to the case.
If the witness responds to any of these approaches, this should be made clear in the account.
It is in your interests that you make clear, whenever possible, where a firm appointment has been made to interview a witness.
Where it is not clear that this step has been done the entry may be restricted accordingly and the question asked.
When following up on such a witness and in the absence of any indication that a further firm appointment has been made, the agent should not incur significant expense in carrying out further speculative, abortive visits, on the off chance that the witness will be in attendance.
In the event that it is clear that a further appointment was made and the precognition agent attended in good faith then this will be considered payable, subject to the test of reasonableness.
It is all a question of degree, however, and if an account discloses a large number of speculative visits to the same witness or, indeed, a number of witnesses, restrictions to the time and travel costs will most likely be made.
Each account is considered on its own merits with particular focus on the procedures adopted and disclosed by you or your agents indicating at least, that every care was taken to secure a firm appointment and keep it.
When it is apparent that the work has not been carried out with due care and with due regard to economy, or the account is unclear on whether it has, entries will fall to be restricted.
A third abortive visit – and beyond – will be restricted.
Otherwise, if it is felt absolutely necessary that a precognition be taken from a reluctant witness, it may be appropriate for a precognition on oath to be considered, where appropriate.
If the account features significant costs arising from repeated abortive visits then it is clear that the whole basis on which the exercise has been carried out is not consistent with what should be done and the additional costs will be restricted.
If the account indicates that a witness has actually expressed a desire not to provide a precognition then any further attempts to obtain such a precognition must be restricted.
You may require to take a precognition from individuals whose names have been provided by the client and who are likely to support their case.
Clearly, if there is a difficulty in obtaining a precognition from such witnesses, the option is not open to you to look to a statement provided by say the Reporter or COPFS.
On the other hand, the client can be useful in “chasing up” such individuals where they are friends or colleagues of the client.
We would expect you to advise the client of any difficulties that you are experiencing and the viability of the witness in question before expending time and money on abortive visits to see if they can assist.
A different situation relates to a witness who may be hostile or reluctant whom the client believes has important information to provide.
It is recognised that you will clearly wish to take a precognition from such an individual but it also has to be said that the individual will probably have no particular inclination to give such a precognition and repeated visits against such a background will be the subject to challenge.