Preparation

Civil Legal Aid

Where the case is ongoing and you remain instructed the protocol between the Scottish Legal Aid Board and the Faculty of Advocates, effective from 1 October 2022,  precludes payment of preparation until the conclusion of the proceedings and the submission of the solicitor’s and counsel’s final account.

Children’s Legal Aid

Where the case is ongoing and you remain instructed the protocol between the Scottish Legal Aid Board and the Faculty of Advocates, effective from 1 October allows for payment of preparation as assessed by SLAB in accordance with regulation 10(1) of the Civil Legal Aid (Scotland)(Fees) Regulations 1989.

Where preparation can be considered the following guidance applies.

Paragraph 4 of the notes on the operation states:

“Subject to paragraphs 5 to 7, the fees prescribed in the Tables of Fees in this Schedule include all associated preparation work”

The ordinary levels of preparation associated with a case of that type are included in the prescribed fees payable in the case.

Paragraph 5 of the notes on the operation states:

“Subject to paragraph 6, an additional fee for preparation shall only be allowed if it relates to a proof, debate or like hearing and the hearing…”

Your claim must demonstrate that the preparation relates to a proof, debate or ‘like hearing’ before we can consider a claim for preparation.

In relation to ‘like hearings’, you should have regard to the decision of the Inner House delivered by Lord Menzies in the hearing on Note of Objections to the Auditor’s Report by Mungo Bovey, KC. in the application of AB, [2021] CSIH 3, when considering if the preparation relates to a “proof, debate or like hearing”.

Generally speaking procedural or other hearings, including permission hearings, are not considered to be “like hearings”.

In the Note of Objections to the report by the Auditor of Court dated 11 April 2018, in the cause of Ermiyas Tadesse Wondimu against the Secretary of State for the Home Department, Lord Arthurson opined that in the particular circumstances of that case the permission hearing was not a like hearing.

However, the IH in Bovey petitioner clarified that they did not agree with an analysis that every permission hearing could not be a like hearing. They opined that “we do not suggest that every permission hearing will inevitably satisfy the “proof, debate or like hearing” test under paragraph 5 of Schedule 4. It is perhaps conceivable that in a particular case a short permission hearing might not meet that test.

However, it is for the Auditor to assess whether that test has been met in all the circumstances.”

Where preparation is for a proof, debate or ‘like hearing’ your claim must demonstrate that one of the four criteria under paragraph 5(a) to (d) applies.

Where we are not satisfied that the hearing is a proof, debate or ‘like hearing’ we will disallow the preparation claim and invite you to provide further information in support of the claim.

Paragraph 5(a) of the notes on the operation states:

“does not proceed (a date or dates having been assigned for the hearing)”

Your claim must demonstrate that:

• a date or dates has been assigned for the hearing; and
• the preparation undertaken is additional to the ordinary preparation subsumed within the general fees payable in the case.

Paragraph 5(b) of the notes on the operation states:

“does not exceed a day in duration”

Your claim must demonstrate that:

• the preparation undertaken is additional to the ordinary preparation subsumed within the general fees payable in the case including the hearing fee.

Paragraph 5(c) of the notes on the operation states:

“does not exceed four days in duration, and the Board is satisfied that the case is abnormal in magnitude, difficulty or any other respect”

Your claim must demonstrate that:

• the preparation undertaken is additional to the ordinary preparation subsumed within the general fees payable in the case including the hearing fees; and
• the case is abnormal in magnitude, difficulty or any other respect.

Paragraph 5(d) of the notes on the operation states:

”exceeds four days in duration, and the Board is satisfied that the case is abnormal in magnitude, difficulty of any other respect, and also that counsel required to consider an abnormally large quantity of documentation”.

Your claim must demonstrate that:

• the preparation undertaken is additional to the ordinary preparation subsumed within the general fees payable in the case including the hearing fees;
• the case is abnormal in magnitude, difficulty or any other respect; and
• you were required to consider an abnormally large quantity of documentation.

We consider that the reference to “abnormally large quantity of documentation” is having regard to the standard amount of documentation for a case of that type and duration and you should provide a supporting narrative to justify why the documentation is deemed to be abnormally large.

Where we are satisfied that the relevant criteria has been met we may allow a reasonable level of preparation having regard to the circumstances of the case.

Where we are not satisfied that the relevant criteria has been met we will disallow the charge and invite you to provide further information in support of the claim.

It is common for proofs to be dealt with in separate tranches, particularly where the proceedings are of an extended duration.

For example, following a five-day proof the court may separately assign a two-day proof to be held six months later and preparation may be payable for each tranche of proof.

The assessment of preparation for the initial (five-day) hearing would require you to demonstrate that the criteria under paragraph 5(d) has been met whereas preparation for the second (two-day) hearing would require you to separately demonstrate that the criteria under 5(c) has been met.

Where we are satisfied that the preparation relates to distinct hearings we may allow a reasonable level of preparation having regard to the circumstances of the case.

Where we are not satisfied that the preparation relates to distinct hearings we will allow a reasonable level of preparation and invite you to provide further information in support of the claim.

Paragraph 6 of the notes on the operation states:

“An additional fee for preparation as provided for in paragraph 5 above shall be allowed only on the following conditions…”

Paragraph 6(a) of the Notes on Operation states:

“the fee is only chargeable in respect of work undertaken following the instruction of counsel for the hearing”

Your claim must demonstrate that you had been instructed for the hearing prior to undertaking preparation.

For example, any preparation undertaken on receipt of initial instructions prior to a hearing being assigned would not be payable.

Where we are satisfied you had been instructed for the hearing prior to undertaking preparation we may allow a reasonable level of preparation having regard to the circumstances of the case.

Where we are not satisfied we will disallow the charge and invite you to provide further information in support of the claim.

Paragraph 6(b) of the Notes on Operation states:

“in respect of any hearing, except on cause shown, such a fee is allowable only once to junior or senior counsel, or as the case may be junior and senior counsel, notwithstanding that the applicant or assisted person is represented by more than one junior or senior counsel during the course of the proceedings”

Where preparation is claimed in a case by multiple counsel we must be satisfied that it is reasonable to allow payment of preparation to more than one counsel.

For example, if senior counsel is acting and is elevated to the Bench it would be necessary for incoming counsel to ‘read in the case’ and charge reasonable preparation.  It would also be reasonable to allow outgoing counsel preparation given the reason for the change in counsel.

Where we are satisfied, that payment for preparation is payable more than once we may allow a reasonable level of preparation to both counsel having regard to the circumstances of the case.

Where we are not satisfied that payment for preparation is payable more than once we will allow a reasonable level of preparation to one counsel (of the same status) and invite any other counsel to provide further information in support of the claim.

Paragraph 6(c) of the Notes on Operation states:

“the Board, or as the case may be the auditor, must be satisfied that the time engaged in preparation was reasonable and proportionate in all the circumstances of the case”

Your claim must demonstrate that the level of preparation is reasonable and proportionate having regard to all the circumstances of the case.

Where the level of preparation in a case which involves multiple parties is claimed at a higher rate by counsel acting on behalf of one party, when compared to any other counsel in the same case for another party, we must be satisfied that the additional preparation is reasonable.

For example, if counsel for one party has considered material which is not relevant to the other parties then it may be reasonable to allow that counsel additional preparation time.

Where we are satisfied based on the information available that the preparation charge is reasonable and proportionate we may allow the preparation that has been claimed.

Where we are not satisfied that the additional preparation is reasonable and proportionate we will allow a reasonable level of preparation, if any, based on the information which has been made available and invite counsel to provide further information in support of the claim.

Paragraph 6(d) of the Notes on Operation states:

“counsel shall provide the Board with a detailed summary of the work undertaken and the documentation perused at each stage of the process and shall, if required by the Board, provide details of authorities referred to, the time engaged, dates and locations as to when and where the work was undertaken, and any contemporaneous records or notes made in the course of preparation”.

Where your claim has not demonstrated that the full level of preparation is payable we may wish to invite you to provide us with a detailed summary of the work undertaken and any contemporaneous records or notes made in the course of preparation.

Paragraph 7 of the notes on the operation states:

“The additional fee for preparation shall be calculated by dividing the time allowed, as determined in accordance with paragraphs 5 and 6, into units of 8 hours, each unit being payable at the rate of two thirds of the daily rate applicable to that hearing as prescribed in the Tables of Fees”.

The majority of hearings that attract a fee for additional preparation will be payable at the substantive hearing rate.

The additional fee for preparation is calculated by dividing the time you consider reasonable into units of eight hours.

• Each unit being payable at two-thirds of the substantive hearing fee.
• A unit is payable for any tranche of preparation of less than eight hours, where appropriate. For example, where 10 hours preparation is reasonably payable you may claim two units x 2/3rds of the relevant rate payable for the hearing.

Where a fee for a hearing is prescribed on a “per half hour” basis we cannot allow the equivalent ‘like hearing’ fee.  However where your claim demonstrates that the ‘like hearing’ test has been met it may be appropriate to allow a fee for additional preparation.

The additional fee for preparation is calculated by dividing the time you consider reasonable into units of eight hours.

• Each unit is payable at two thirds of the total fee payable for a six hour hearing based on appropriate ‘per half hour’ rate.
• A unit is payable for any tranche of preparation of less than eight hours, where appropriate. For example, where 10 hours preparation is reasonably payable you may claim two units x 2/3rds of the relevant rate payable for the hearing.

Where you charge an ‘assessed fee’ for a hearing your claim must demonstrate that the ‘like hearing’ test has been met.

• Each unit is payable at two thirds of the “assessed fee”
• A unit is payable for any tranche of preparation of less than eight hours, where appropriate. For example, where 10 hours preparation is reasonably payable you may claim two units x 2/3rds of the relevant rate payable for the hearing.