Statutory tests of taxation and payment from the Fund

The following regulations form the basis, set by Parliament, on which you are entitled to payment and is termed the standard of taxation. It is the test (or benchmark) against which we are required to assess an account, and it is important that you have an understanding as to the basis on which an account is properly payable.

In circumstances where we cannot allow a charge on the information provided, in whole or in part, we require to restrict the charge.

Section 4(2)(a) of the Legal Aid (Scotland) Act 1986, states that only such sums as are due in respect of fees and outlays properly incurred by a solicitor (or counsel), by virtue of the Act or regulations, can be paid out of the Fund.

Accounts submitted in relation to criminal legal aid are regulated by the Criminal Fees Regulations.

Regulation 7 of the Criminal Legal Aid (Scotland)(Fees) Regulations 1989, provides that a solicitor shall be allowed such amount of fees as shall be determined to be reasonable remuneration for work actually and reasonably done, and travel and waiting time actually and reasonably undertaken or incurred, due regard being had to economy.

Regulation 8, provides that solicitor shall be allowed the following outlays, due regard being had to economy:

(a) travelling expenses actually and reasonably incurred by himself or his clerk in connection with travel for which a fee for travelling time is chargeable and, in calculating the travelling expenses due, paragraph 16(5) of the notes on the operation of Schedule 1A applies to those expenses as it applies to the fee for travelling time

(b) fees paid to witnesses who are not on the Crown list, which fees shall not exceed such sums as are considered by the Board to be reasonable having regard to the sums payable from time to time by the Crown to witnesses of the same categories; and

(c) any out of pocket expenses actually and reasonably incurred, provided that without prejudice to any other claims for outlays there shall not be allowed to a solicitor outlays representing posts and incidents.

ABWOR is simply a type of advice and assistance where representation can be provided, but only for the proceedings listed in the ABWOR regulations.

Accounts submitted in relation to ABWOR are regulated by The Advice and Assistance (Scotland) Regulations 1996.

Regulation 17(1) of the Advice and Assistance (Scotland) Regulations 1996, provides that fees and outlays allowable upon assessment by us, or taxation by the Auditor, can only be for work actually, necessarily and reasonably done and outlays actually, necessarily and reasonably incurred in connection with the subject matter of the advice and assistance, due regard being had to economy.

There are four elements to the test, all of which must be satisfied.

The test applies to both the fees and the outlays incurred by you.

You must never ask your client to put you in funds to cover an outlay or fees at a time when advice and assistance or legal aid is being provided.

It is worth discussing the standard of taxation in some detail.

An understanding of the legal basis on which we are tasked with assessing an account is fundamental to our approach, see Parks v Colvilles Limited (1960) S.C. 143 per. Lord Patrick at page 153 where, in identifying and supporting a third party standard, his lordship states: “In these instances the parties controlling the fund…have had no voice in controlling the scale on which the expenses were incurred”.

This is important. The standard of taxation applicable to the assessment of an advice and assistance or legal aid account is solicitor and client, third party (Fund) paying.

This standard is quite different from the two standards, or modes of taxation as between solicitor and client:

• on a solicitor and client, client paying basis, where the test is the client is liable to his solicitor for all expenses reasonably incurred, even although they could not be recovered from the other side, and for any expenses which he has specially authorised (MacLaren: Expenses at 509);
• on a party and party basis, where the test is on the basis of such expenses as are reasonable for conducting the proceedings in a proper manner.

Clearly these definitions are more suited to where representation is allowed (legal aid or ABWOR), but they can equally be applied in principle to advice and assistance accounts.

There is a body of law defining the scope, structure and application of the third party standard.

According to Sheriff MacPhail, the taxation of an account as between solicitor and client, third party paying should be closer to the taxation standard of party and party (following an Interlocutor awarding expenses against an opponent without qualification) than between a solicitor and his own client. Macphail continues, at Sheriff Court Practice, 4^th  edition, (2002), chapter19.56, that the third party paying mode, while “not so generous” as in a taxation between solicitor and client, client paying, “is yet not quite so rigorous as the taxation between party and party”.

 In short, some work undertaken by you may not be chargeable to the Fund on a third party basis of assessment, and your client’s authority or approval is not necessarily determinative in the context of publicly funded advice.

It should be noted that:

• the requirement that an item of work has to be “necessarily” done is stated and not implied; and
• the phrase “due regard to economy” or “conducting the proceedings in a proper manner” is a clear injunction to a solicitor to address the question of cost actively in the way in which fees and outlays are incurred in the course of the advice and representation that is being provided.

Sheriff MacPhail also quotes the dicta of Lord McLaren in the case Hood v Gordon 1896 23R 675, as follows:

“…when a statute authorises the taxation of expenses as between agent and client, what is given is the expenses which a prudent man of business, without special instructions from his client, would incur in the knowledge that his account would be taxed. “

The term “prudent man of business” can be read as a “prudent solicitor”.

The aim of this guidance is to provide you with an indication as to how your account may be taxed: what we as the paying party, applying the third party test, consider to be chargeable and shall allow in the assessment of an account, and in our determination as to whether the work undertaken was reasonable and calculated in terms of the Tables of Fees, see the observations of Lady Rae in the Note of Objections by Mark Stewart QC 3 July 2014.

According to James Hastings, formerly Principal Clerk of the Office of the Auditor of the Court of Session, in his work “Expenses in the Supreme and Sheriff Courts of Scotland” (1989) at page 112, he explains that the benefit of any doubt is to be given to the paying party where the legal aid Fund is paying in the event of uncertainty or lack of supportive detail in respect of a claim.

It is important to emphasise that the benefit of the doubt test is not engaged where we, or an auditor as the case may be, is not in any doubt about the basis of a claim on the legal aid fund.