Taxation and Note of Objections procedure

While there is a statutory right to taxation, it is not a universal remedy for a range of issues that may arise at the assessment stage.

It is limited in a number of ways.

For example, it is primarily our decision whether advice and assistance (or ABWOR) has been provided under the Act and regulations in the circumstances of any particular case and whether an account submitted to us is competent and falls to be assessed. It is not a decision of an auditor.

This may arise, for example, in situations where:

• the advice was clearly not on a matter of Scots law, eg advice on a matter relating to the European Court of Human Rights, see Graeme Donaldson v SLAB [2014] CSIH 31
• there has been a failure to apply the relevant eligibility tests properly
• standard A&A was neither available nor was a determination to allow standard A&A made by us
• ABWOR has effectively been provided in circumstances where ABWOR was not available
• you have undertaken work which requires our prior approval without the necessary approval
• your account has been submitted out of time without a special reason being provided that would allow us to exercise our discretion.

We may make this decision, subject always to judicial review, at any time whether an account is identified and rejected immediately on its receipt, or is identified thereafter in the course of being processed for assessment.

It is inherent in our regulations that the account must have been assessed before it is lodged for taxation.

Taxation is premature in circumstances where we are unable to finalise the assessment of an account.

This may arise in circumstances where we have paid on offer but you have made no meaningful attempt to negotiate or agree the account, or where we have requested information, documentation or perhaps even the file and such information has been withheld.

Our position is that it is an abuse of the taxation process to lodge an account for taxation in these circumstances, and any reference to the auditor will be challenged.

The regulatory basis on which a taxation may proceed under advice and assistance could be said to be narrower than the equivalent arrangements under legal aid where taxation arises from a “question or dispute” arising in the account.

Under advice and assistance a solicitor’s right to taxation only arises “if the solicitor is dissatisfied with any assessment of fees and outlays by the Board”.

There is not, we believe, the same scope for asking the auditor to opine on issues of interpretation in the context of a legal aid taxation.

Where we are unable to reach an accommodation on the fees and outlays payable from the Fund provision is made which allows you to exercise your right to taxation.

Taxation is the process where an independent determination of fees is carried out by the Auditor.

At the conclusion of the taxation having considered all the documentation and where appropriate heard submissions, the Auditor issues a report.

In terms of regulation 11(3) or 11A of the Criminal Fees Regulations, SLAB and any other party to a reference to the Auditor have the right to state written objections to the court in relation to the Auditor’s report within 14 days of the issue of that report.

For the purposes of this regulation the “the court” means:

• in relation to any report of the Registrar of the Supreme Court, the Supreme Court
• in relation to any report of the Auditor of the Court of Session, the High Court
• in relation to any report of the Auditor of a Sheriff Court in relation to proceedings in the Sheriff Appeal Court, the Sheriff Appeal Court
• in relation to any report of the Auditor of a Sheriff Court, (other than a report in relation to proceedings in the Sheriff Appeal Court), the Sheriff.

An advice and assistance (or ABWOR) taxation can proceed before any auditor and is not restricted, as is a legal aid taxation, to the auditor of the sheriff court in which the proceedings took place.

An auditor, however, may not be prepared to accede to a request for taxation on the lodging of your account if there is no clear link with that auditor’s jurisdiction. That would be a matter for the auditor.

The regulatory provision for an account being lodged with the auditor is simply a link into the wider system of taxation in Scotland.

The normal policies and practices surrounding the taxation of accounts apply, and the auditor has a wide discretion in the way in which a taxation is conducted.

The role of the auditor in a legal aid case remains the same as in any other taxation. In this regard, the respective roles of the auditor and the court were defined by Lord Woolman in the case of Marilyn Stewart and others v Mrs. Amanda Reid and another [2015] CSOH 175 at paragraphs [24] and [25]:

“[25] From those authorities I derive the following propositions regarding the respective roles of the Auditor and the court: 

1. The Auditor acts essentially as a valuer. 
2. He is expected to apply his knowledge and experience in carrying out his task of assessing a fair and reasonable fee.
3. The court will be slow to disturb his decision if he has properly exercised his discretion.
4. It will not substitute its own views for those of the Auditor.
5. It will not attempt to tax an account itself.
6. The court will, however, intervene if the Auditor did not have sufficient materials on which to proceed, or his decision is unreasonable.”

It is not the function of the auditor, as identified at bullets a. and b. to interpret the legal aid legislation or to attempt to attach a value to work that is not chargeable due to a more fundamental cause, for example that the work was undertaken or an outlay incurred:

• before the client was properly admitted to advice and assistance or legal aid;
• the work was outwith the scope of advice and assistance or legal aid;
• costs incurred were beyond the limit of authorised expenditure at the time.

When a case has been lodged for taxation you will require to comply with the procedures that are set down by the relevant auditor which will ordinarily follow the procedures laid out in:

• Rules 48-53 of the Supreme Court Rules 2009;
• Chapter 42 of the Rules of the Court of Session;
• Chapter 20 of the Sheriff Appeal Court Rules; or
• Chapter 32 of the Sheriff Court Ordinary Cause Rules.

Where payment is not due out of the Fund, there are restrictions as to what you can charge your client from any contribution, expenses or property recovered or preserved in connection with the matter [Section 12 of the Legal Aid (Scotland) Act 1986]:

• you may only charge at advice and assistance rates
• you can only charge within the maximum limits of authorised expenditure that applied at the time the work was done or any outlays incurred; and
• you cannot exceed the total limit of authorised expenditure.

Your client is entitled to have the account taxed by the auditor of the sheriff court in the event they are dissatisfied with the amount of fees and outlays which they have been charged in terms of regulation 19(1) of The Advice and Assistance (Scotland) Regulations 1996.

You are entitled, at any time, to stop providing advice and assistance to your client provided you follow the correct procedures.

If your client wishes you to do further work for them privately, you cannot charge them private rates during the period that advice and assistance was in place.

In certain circumstances a Note of Objections to the Auditor’s report can be taken if it is considered the Auditor has gone wrong.

There is currently no provision for a Note of Objections to the sheriff on an advice and assistance or ABWOR account, and a challenge can only be made to an auditor’s report by way of judicial review.

In terms of regulation 11(3) or 11A of the Criminal Fees Regulations, SLAB and any other party to a reference to the Auditor have the right to state written objections to the court in relation to the Auditor’s report within 14 days of the issue of that report.

For the purposes of this regulation the “the court” means:

• in relation to any report of the Registrar of the Supreme Court, the Supreme Court
• in relation to any report of the Auditor of the Court of Session, the High Court
• in relation to any report of the Auditor of a sheriff court in relation to proceedings in the Sheriff Appeal Court, the Sheriff Appeal Court
• in relation to any report of the Auditor of a sheriff court, (other than a report in relation to proceedings in the Sheriff Appeal Court), the sheriff.

It should be borne in mind, before taking a note of objections to the Auditor’s report, that the Auditor has a wide discretion.

The court’s role in challenges to the exercise of that discretion is a limited one and analogous with those available in a judicial review.

The leading modern authority is Shanley v Stewart [2019] CSIH 15, Lord President (Carloway) delivering the opinion of the court, at [25], states: “The court can interfere only if the Auditor has misdirected himself in law, taken irrelevant circumstances into account, failed to take into account relevant circumstances or misunderstood the factual material before him. Where his decision depended on the exercise of discretion, it will be susceptible to being overturned only where it is such that no reasonable auditor could have reached it.”

Auditor’s decisions are not binding on any other auditor although they may well be persuasive. In terms of part 3, paragraph 18 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, the Auditor of the Court of Session must issue guidance to the auditors of court about the exercise of their functions.

The guidance may, in particular, include guidance relating to the types and levels of expenses that may be allowed in an account of expenses.

Taxation decisions, sometimes only in the form of a taxed account, may do no more than value the work or outlays incurred in the circumstances of the account.

This together with the lack of any requirement for an auditor to issue detailed reasons, the role of the auditor being a “practical jurisdiction” – see Marilyn Stewart and others v Mrs. Amanda Reid and another [2015] CSOH 175 at paragraphs [26] to [29] – means that most decisions have limited practical effect beyond the circumstances of the particular account that is the subject of taxation.

Other decisions, however, often in the form of a Note or Report, may set out certain general observations or broad principles and where this is so they will have guided our decisions and approach to taxation.

There are some decisions which have been instrumental in forming our approach and the content of this Guidance.