Preparation and submission of your account

Interim Payments

A claim for interim payment may be submitted under regulation 33ZB of The Legal Aid (Scotland) Act 1986.

Criteria for making a claim

• the first interim claim may be submitted no earlier than the date three months following the date on which we gave notice in writing of the grant of legal aid
• a second or subsequent interim claim may be submitted at intervals of not less than three months after the date of the immediately preceding claim in that case.

In cases of exceptional hardship we can also consider a claim, on cause shown.

The manner in which fees are to be submitted and paid is covered in the protocol between the Scottish Legal Aid Board and the Faculty of Advocates, effective from 1 October 2022.

Although solicitor-advocates are not members of the Faculty of Advocates, the same rules apply to ensure consistency of approach in how all “counsel” for the purposes of the fees regulations are dealt with.

Recovery where interim claim excessive

Where you accept an offer of payment, either through negotiation with your clerk or following taxation, which is less than the payment we have made as an interim payment you must make the necessary repayment to the Legal Aid Fund.

33ZC(2) of The Legal Aid (Scotland) Act 1986 states:

“Where the sum paid out of the Fund exceeds the sum that would, but for section 33(6), be payable under section 4(2)(a) in connection with the provision of the legal aid or advice and assistance, the solicitor or (as the case may be) counsel is liable to the Board for the difference between the sums”.

Final solicitor’s account where case is concluded (civil only)

Your fees must be submitted to the instructing solicitor who is then responsible for submitting all counsel’s fees in tandem with their final account at the conclusion of the case or where there involvement has come to an end.

Upon receipt of your fees in line with long standing practice we will then contact Faculty Services Limited (FSL) to confirm if we have all fees before assessing your claim.

Final solicitor’s account where case is still ongoing (civil only)

Where the solicitor submits a final account as a result of a transfer of solicitor but the case is ongoing we will contact FSL to establish whether your involvement has come to an end or you continue to act.

Where you confirm that your involvement in the case is at an end we will assess your fees.

Final counsel’s account (children only)

In children’s legal aid counsel should submit their final claim via email at faculty@slab.org.uk within four months of:

• the date of conclusion of the case; or
• the date of conclusion of counsel’s involvement in the case where the proceedings have not concluded.

Preparation of your account

When you are submitting an account you should always ensure:

• that the correct Table of Fees has been charged relative to the type of account that you are submitting
• the correct fee rates have been charged relative to the date that the work has been done
• only charge for work activities that have been properly incurred and fall within the scope of legal aid which has been made available; and
• that you have the necessary prior approval for work items where appropriate.

Your account should:

• be typed and not handwritten
• be in chronological date order
• show charges for each item of work (where appropriate) separately
• provide the status in which you have acted.

Your account should also record:

• the name of the solicitor who has instructed you to act
• the name of any client or witness in support of charges
• details of any identifier (if appropriate) to link to the relevant case file
• a narrative of the nature of the work done (e.g. you should not simply state “consultation” or “preparation” you must include a description of the work that has been undertaken; and
• sub-total each separate fee invoice.

SLAB entitled to free accounting

You are not entitled to make any charge for preparing, submitting or negotiating a legal aid account.

As the third party paying, we are entitled to free accounting.

Time limits for submitting your account

You must submit your account:

• within four months of the conclusion of the proceedings for civil or children’s legal aid accounts.

Reasons where we may accept late submission of an account

The relevant fees regulations provide us with a discretion to accept late accounts but only where you are able to provide us with a special reason.

Examples of a possible “special reason” are:

• the lengthy incapacity or death of counsel
• fire or other accidental damage to your office
• significant disruption of your administration as a result of circumstances that could not reasonably have been avoided; or
• the circumstances were within your control, and ought to have been foreseen, but the oversight was nonetheless justifiable given the particular circumstances of the case.

We are unlikely to accept forgetfulness, ignorance of the regulations, lack of staff or a law accountant’s delay as special reasons.

Where you are aware that your account may be late you are encouraged to contact us in advance of the expiry of the relevant time period to seek an extension of time to submit your account.

VAT

Where work done by counsel constitutes a supply of services in respect of which value-added tax is chargeable, we will add to the amount of fees allowable an amount equal to the amount of value-added tax chargeable.

You should refer to our separate policy and guidance in relation to the application of VAT on counsel’s fees and outlays.

That guidance is of particular importance to counsel who accept instructions and provide legal services to clients who have not been granted a right or permission to remain in the UK.