Preparation

There is no definition of preparation under the advice and assistance or legal aid regulations.

The former Auditor of the Court of Session in 1987 in GD v GG, opined:

“The Auditor has grave reservations about the very prevalent practice of adding to an account ….. a further omnibus catch-all time based entry for unspecified work seeking admissibility under the head of “preparation” but it would wrong to regard it as altogether unreal. It seeks to cover time actually spent, most often by the solicitor himself, in maintaining order for the papers for Counsel and the solicitors, in checking over and refamiliarising  himself with the whole material prepared and in the items of work which have slipped out through the recording system and evaded reconstructive recollection. The first of those is clerical but dangerous to commit to clerical staff: the second is traditionally a non-chargeable activity: and the third, in the most brutal analysis, is a cover-up for in-efficiency in record keeping. In the normal case the Auditor will allow only a very limited charge for this “preparation”.”

More recently it was acknowledged by the Auditor in Dundee Sheriff Court in the case of CM, 20 July 2015, that the re-familiarisation of documentation for which a perusal charge had already been allowed should, where the charge is deemed reasonable and is not expressly precluded by regulation, be charged as preparation and not as a perusal charge.

It is generally accepted that in modern times, except in all but the most straightforward of cases, and mindful of your obligation to the court and the client that a level of preparation will be necessary in advance of attendances at court.

A case which is conducted with due regard being had to economy will be one that is well prepared and consequently may reduce the time spent in the respective work activity for which the preparation has been necessary.

In complex, novel or very difficult cases it may be appropriate, on cause shown, to consider reasonable payment for time spent in preparation of a consultation or joint meetings, where it can be demonstrated this was reasonable in the particular circumstances of the case and reduced the duration of the actual time required at the consultation or joint meeting.

In accounts charged under detailed fees you will have already received payment for all work actually and reasonably done in the case so it is important that you justify any preparation charge.

It is recognised that the nature of the preparation that will be required can vary significantly from case to case depending on the circumstances. There are a number of factors that can affect the time engaged in preparation including:

• the legal complexities of the litigation
• the factual complexity of the matter or the difficulty or novelty of the issues raised
• the volume of productions
• the duration of the proceedings particularly the time between hearings
• the nature of the hearing and whether there has been any material change in circumstances since the case last called in court
• the vulnerabilities of the client and, in particular, ability to understand the proceedings and the consequences of their actions.

This is not intended to be an exhaustive list.

Where a fee for preparation is allowable it is chargeable at the prescribed rate for a solicitor or solicitors clerk for each quarter hour (or part thereof) where they are occupied in carrying out work for the client other than work for which a fee is otherwise prescribed (e.g. the “non-advocacy” rate).

Paragraph 4(j) of the Notes on the operation of schedule 1A specifically precludes a fee for “preparing for a hearing”.

As there is no separately prescribed fee, each case must be considered on its own merits.

It is important to emphasise that the time expended by you is not necessarily the time to be remunerated. Only the time reasonably expended is to be remunerated otherwise there is a risk that the inefficient, slower worker, gets better pay for the same work than the efficient worker.

That runs contrary to making payment for work due regard being had to economy or the principle of allowing for work which a prudent solicitor would claim in the knowledge that their account was to be taxed.

Our role in exercising our own knowledge and experience is to assess whether the time spent was reasonable, for the type of case that we are assessing and whether a solicitor of reasonable competence would have taken that time to perform the work due regard being had to economy.

The decision is a matter of balanced judgement rather than arithmetical calculation.

In order that we can reach an informed view that the work was not only reasonable but is of a type of work that is actually payable in terms of the respective fees regulations, the account narrative must provide a brief outline as to the nature of the work done in support of the fee that has been claimed as well as specifying the actual time engaged.

A minimum fee for preparing for a hearing will not require the same level of supporting narrative as a charge which is longer but you must still provide a brief narrative explaining the nature of the work that was done.

We will also have regard to the nature of the hearing when determining what level of preparation will be required.

For example, the preparations for a substantive diet are likely to be higher than what you would expect to see claimed for a less substantive diet.

It is your responsibility to provide a sufficiently detailed narrative in support of the charge being made.

Where the narrative does not appear to justify the time engaged we may reduce the charge to a time that we consider to be reasonable based on the information available and invite you to provide further details in support of the charge.

Where this information is available we will have regard to times engaged in respect of preparation by other solicitors acting for parties involved in the same proceedings.

It is recognised that accounts will from time to time vary for preparation charges and where this arises we may, where necessary, seek clarification as to the reasons why that may be so where the supporting narrative, corresponding file entry or any other relevant material available is considered to be insufficient to justify either fully, or in part, the charge claimed.

This is particularly important where the difference for the same work activity is significant.

That approach allows us to draw what should be an objective and meaningful comparison in the way a case has been conducted standing our statutory obligation to pay for work “actually and reasonably done” for conducting the proceedings in a proper manner.