Sheriff court cases chargeable on a block fee basis: defended action

In determining the fees that are payable we must apply the provisions of the Notes on the operation of chapter II, in tandem with the statutory tests of taxation. Particular attention is drawn to the following paragraphs.

Paragraph 1

1. In assessing any account lodged with SLAB on a solicitor and client, third party paying basis, regard shall be had to:
   1. what would be considered reasonable in a judicial taxation, on a party and party basis, for conducting the proceedings in a proper manner; and
   2. any work or expense specifically sanctioned, certified or authorised by SLAB.

This does not mean that we are departing from the agent and client, third party paying standard of taxation when assessing your legal aid account.

It is intended as a guide that if charges are considered reasonable on the judicial taxation standard (normally ‘party and party’) then those charges are likely to be reasonable under legal aid.

Paragraph 2

2. It shall be competent for the Auditor to disallow any fee which he shall judge irregular or unnecessary.

Although the reference is that the Auditor may disallow any fee it is reasonable to assume that SLAB has a similar authority for any fee which is deemed irregular or unnecessary. Although not relating to solicitors fees a similar practice was approved by Lord Coulsfield in HM Advocate v Birrell 1994 SLT 480 at p 483 between I and L:

“… counsel really agreed that, although the regulations and the Schedule are expressed by reference to the powers of the auditor, and the auditor must decide what fee is appropriate when a dispute arises, it must be taken to be implied that the board are entitled to negotiate and pay reasonable remuneration for items of work not specifically listed in the table of fees… I see no reason to doubt that the board are entitled to pay reasonable remuneration for work done, where there is no relevant item in the table, without requiring the intervention of the auditor.”

Paragraph 5

5. The fees set out in this chapter include:
   1. all correspondence, telephone calls or communication of whatever nature with us
   2. all fees incurred by any other solicitor in relation to work done in any part of the case, which shall not be a chargeable outlay; and
   3. copyings

and include not only the work expressly set out within the terms of each paragraph but also (unless specifically provided for) all meetings, correspondence, precognitions, negotiation ancillary thereto, and all posts and incidental expenses.

This puts beyond doubt that no fees can be charged in addition to the inclusive fees except where provided for in Schedule 7 of the Civil Fees Regulations.

Paragraph 24

24. No fee is allowable unless the work for which the fee is payable has been completed in its entirety.

This makes clear that despite the terms of regulation 5(6) of the Civil Fees Regulations which allows the auditor (which can equally be read across as SLAB) the general power to modify fees “in the event of the proceedings being settled or disposed of at a stage when the work covered by any inclusive fee has not been completed” that this cannot be applied where the block is chargeable under chapter II.