Travel

Payment will be made for travel in accordance with the regulations and relevant taxation standard relevant to the type of legal aid or advice and assistance that you are providing.

Where a fee is payable we will pay for travel actually and reasonably done at the rates that are specifically provided for in the respective Table of Fees.

The assessment of travel time requires to be considered, where appropriate, in tandem with our published guidance in relation to “reasonableness”, “aggregation” and “apportionment”, where appropriate.

The above fees do not apply to travel in connection with taking a precognition in relation to solemn proceedings which is covered by separate guidance, other than where paragraph 19(a) of the Notes on the operation of Schedule 1A applies (time spent by a solicitor in connection with a precognition).

Although each case must be considered on its own facts and circumstances, there are general principles that we will apply when considering a claim in respect of travel.

You should always give some thought to the most cost-effective means of travel, taking into account not just the travel costs but the time involved in circumstances where you need to travel.

Where necessary travel is undertaken, we expect you to be able to demonstrate that you have kept the overall cost of travel to a minimum.

Where necessary travel is undertaken, we would expect you to be able to demonstrate that you have kept the combined costs of travel time and associated outlays to a minimum standing the obligation to conduct the case with due regard being had to economy.

For example:

• it may be more economical to incur a more expensive train fare if the consequent travel time is reduced to the extent that the overall cost to the Fund is less than travel by car or vice versa
• plan travel as far in advance as possible to avoid travelling to the same destination over consecutive days
• combine journeys wherever possible
• attend more than one client at different destinations when possible
• plan the journey using the most efficient journey, avoiding a more circuitous route
• ensure that the same solicitor, or unqualified person to whom work is delegated, has attended on the client or clients (and, where work is undertaken by a firm over a wide area, the same solicitor should be delegated to undertake work in a particular area to avoid or at least reduce duplication of costs)
• share the car journey when appropriate
• avoid peak time travel where possible
• arrange appointments in advance of attending.

You must always provide details of any delays encountered that increases the travel time, for example, unexpected bad weather, road accidents, breakdowns etc.

We will adopt a pragmatic approach and make a reasonable allowance in such cases, on cause shown.

It is always helpful if you can provide the postcodes of the departure point and destination in support of a charge for travel and this will allow us to reach a more informed view on the reasonableness of the claim.

As a minimum you must provide details of the departure and destination points.

Where necessary, we will check the distance and the duration of travel claimed using online route planners and, if necessary, restrict claims where those significantly exceed the recommended duration or distance, unless a narrative is provided that would justify the amount that is claimed.

There is a range of online GPS route planners which we use (for example, AA, RAC, Michelin, etc.). They all provide broadly consistent results.

Travel to and from court and the time engaged at court travel must be apportioned correctly across the number of cases or clients seen in accordance with the guidance below.

Where there is any doubt as to the amount charged we will disallow the sum claimed until the charges have been clarified.

The general rule is that the onus is on the client to visit your office.

Where this is not possible we will consider a reasonable time and mileage charge.

For example, where the client is:

• in hospital
• in a secure unit
• unable to travel on medical grounds
• subject to a movement restriction order
• subject to bail conditions preventing travel; or
• too young or is elderly or infirm to make the journey.

This is not intended to be an exhaustive list.

Travel to the client is only chargeable from the point where the solicitor has satisfied themselves that:

• the client is financially eligible
• the advice is to be given on a matter of Scots law; and
• the nature of the advice is such that the likely cost of giving it is reasonable.

If we are in any doubt that travel has been charged before those tests have been satisfied we must disallow the charge and we will invite you to clarify the position.

In circumstances where you intend to visit more than one client, you must ensure a sufficient level of authorised expenditure is in place for each case to cover the apportioned travel costs.

This ensures that one client’s authorised expenditure limits is not being used to cover travel for attendances with other clients.

Other clients should meet their own share of the costs.

Paragraph 16(1) of the Notes on the operation of Schedule 1A clarifies that a fee for travelling time is chargeable only for time necessarily spent travelling to and from court, provided that:

(i)   a fee is chargeable for the work undertaken at the court; and

(ii)   the court is not in a town or place where the solicitor has a place of business.

The Legal Aid and Assistance By Way of Representation (Fees for Time at Court and Travelling) (Scotland) Regulations 2014, amended the respective legal aid regulations and made specific provision as to how fees are payable to solicitors and solicitors’ clerks, in relation to the provision of legal aid or assistance by way of representation for time spent at court including any necessary travel.

The time must be calculated on the basis of the total time engaged per day.

This means that where time is spent on any of the following work activities:

• the time conducting a hearing
• non-advocacy time (for example, time spent meeting the client, other side or any other time based charge for time spent at court; and
• any necessary travel to and from court, apportioned where appropriate

at various stages throughout the day, the individual blocks of time spent on those activities must be totalled up and then rounded up to the nearest unit of time specified, before the prescribed fee rate is applied.

Having applied the provisions on aggregation subject to the usual test of reasonableness we will allow a fee for travel to local and non-local courts where it is not expressly prohibited by regulations.

A fee for travelling time is not chargeable if it would have been more economical to use a local solicitor, unless it was reasonable in the interests of the client that the nominated solicitor, or a solicitor assisting the nominated solicitor attended personally.

On cause shown travel to a non-local court will normally be allowed where there is a substantive hearing.

For formal, routine or straightforward court hearings you should, where appropriate, engage the services of a local solicitor to attend to such diets.

Where the nominated solicitor attends you should provide a reason why a local agent could not have been used, due regard being had to economy.

Where a local agent is instructed they should be as local to the court as possible consistent with the taxation decision of the former Auditor of Glasgow Sheriff Court on 22 March 2011, in the case of MW.

In considering whether travel should be allowed we will have regard to the factors set out by Sheriff Jamieson in the Note of Objections to the Auditor’s report in Heuchan v Flanagan, Dumfries, 2016, A32/16:

• the nature of the hearing in question
• the complexity of the proceedings
• Whether it was reasonable or necessary for the client to have instructed a solicitor specialising in a specific area of law, especially one not local to the court’s jurisdiction
• the familiarity the principal agent had with the details of the case, as opposed to whether a local agent could reasonably have been expected to stand in for the principal agent
• the availability of local agents to appear, through conflict of interest or other considerations
• any other special circumstances identified by the party claiming the travel time.

Although that decision was in relation to a dispute on a party and party basis of taxation our view is that the tests can reasonably be applied to a taxation on an agent and client, third party paying basis.

Paragraph 16(1) of the Notes on the operation of Schedule 1A clarifies that travel will be chargeable from the place of business or employment of the person travelling to the relevant location, except where travel:

(a) commences from or concludes at that person’s place of residence (or both commences and concludes at that place), and

(b) is of a shorter distance than travel to the relevant location from their place of business or employment would have been.

It is a question of reasonableness and having due regard to economy that, where firms have offices in different locations, work should be organised in such a way to allow a colleague in a closer office to carry out the work in question, where possible.

Travel time and costs should ordinarily be calculated on the basis of the closest office to the destination being travelled to.

Where a firm has multiple offices, travel undertaken by a partner or director to court should be charged from your firm’s closest “place of business” allowing the subsequent savings to be passed onto the paying party, that is, SLAB.

This is consistent with the approach and outcome reached in the taxation decision of TV in 1993 which established a partner has a “place of business” while an associate has a place of employment.

Non-court travel should be arranged and calculated on the basis of the closest office to the destination being travelled to except where this has not been possible as a result of other business commitments, when travel should be calculated from the partner or directors normal place of business.

Unlike a partner or director, travel by an employee should be charged from the employee’s place of employment.

Your account should set this out clearly to allow us to properly consider the reasonableness of the travel charge.

Travel is chargeable from the place of business or employment of the person travelling to the relevant location, except where travel:

• commences from or concludes at that person’s place of residence (or both commences and concludes at that place); and
• is of a shorter distance than travel to the relevant location from their place of business or employment would have been.

If you offer a 24 hour helpline service to clients, it is likely you will be carrying out work outwith normal working hours from time to time.

In line with normal commercial practice, where travel is chargeable we will pay for travel based either from the solicitor’s place of business or employment or home address, whichever is the shorter distance.

Where you are attending a location (normally court) on consecutive days you must consider the most economical option available.

You should consider if it was more economical to:

• travel each day; or
• stay overnight.

You are not obliged to stay overnight but where you choose the option with the higher overall cost, we will ordinarily only pay the reasonable costs based on the most economical option unless an explanation is provided in support of why higher costs have been incurred.

For example, where previous business commitments result in you travelling to and from court each day we may allow those costs even where this would be higher than if you had stayed overnight.

From time to time issues arise in circumstances where you may have travelled to a distant court by air or by ferry and the hearing is concluded significantly in advance of the return flight/ferry home, or alternatively, where the flight/ferry arrives well in advance of the time scheduled for the hearing.

Where you take the commercial decision to accept instructions for cases in distant courts you must be mindful of the challenges that this can bring from time to time and you should, wherever possible, take steps that will allow you to undertake other chargeable work during periods away from the office.

Where air travel is used we will allow reasonable travel:

• to and from the airport and vice versa
• time spent getting through security and reasonable time spent in the departure lounge can be treated as forming part of the solicitor’s travel charges (It is understood that the recommended time to arrive for domestic flights is ordinarily 75 minutes before the flight with a minimum check in period of 30 minutes prior to flight and a charge of this nature may be allowed)
• to and from court.

We cannot however allow any charge for “travel” or “waiting” for any period before the case was due to call in court or where court business has concluded.

For example, if the flight arrives at 09:00 for a hearing scheduled for 14:00 hours we will allow any excess travel beyond the time it reasonably takes for you to travel from the airport to court (via hotel, where appropriate).

Any excess time does not reflect travel time actually and reasonably undertaken or incurred, due regard being had to economy.

Similarly, travel does not commence as soon as you leave the precincts of the court.

While that will certainly be true in some cases that will not be appropriate in every case.

For example, if the court business concluded at say 10:30 and the return flight was not until 17:00 hours, travel would not be chargeable from 10:30 simply because you elected, through choice, to travel from the court to the airport. The period chargeable in respect of travel would be:

• the time taken to reasonably travel from the court to the airport (via hotel, where appropriate)
• the period reasonably spent in the airport including boarding etc. (see above) prior to departure
• the flight time; and
• any further period of travel from the airport to your place of business/employment or home whichever is the shorter.

A similar approach will be applied to travel by way of ferry.

Where you travel, whether to see a number of clients or the same client in multiple cases, you must apportion travel time by the number of cases dealt with.

The fee chargeable for travelling time is the fee for time necessarily spent travelling divided by the number of cases (whether legally aided or not) in connection with which the travel was undertaken.

All travel and mileage costs should be apportioned equally across all cases, whether legally assisted, privately funded or pro bono, and whether the cases involve the same client or different clients.

You should not claim charges in respect of travel and mileage against one case.

Each case should reflect the actual cost incurred to that case to ensure that:

• one client does not subsidise another client (eg some grants may be subject to a contribution)
• there is no duplication of charging; and
• the correct fee is charged.

It is the overall cost of travel, not the time involved that must be apportioned.

The actual time for travel will generally be the same for all cases, and the cost should be divided equally, subject to the guidance below.

Any mileage charged should be apportioned by the number of cases dealt with by dividing the total cost between each of the cases.

The narrative in each account should specify the number of clients or cases and provide the name and reference number of each client seen.

This will allow us to cross-reference and verify cases, where necessary.

For privately funded and pro bono clients, you should state which of these applied and how many people that were attended to on that basis.

Example: How to calculate travel costs

Travelling time for a return trip for four clients is 30 minutes.

You should calculate the individual charge per case based on the overall cost of 30 minutes of chargeable travel time and divide this by four – which would be 7.5 minutes per case.

For cases chargeable on a detailed basis travel is payable in blocks of 15 minutes.

However, it is not appropriate to divide the travel time by the number of clients and then round that time up to 15 minutes as that will frequently inflate the time allowable in respect of travel.

In this example, rounding up each case to 15 minutes would result in a total charge of 1 hour of travel, against the actual time spent of 30 minutes and this would not reflect the travel time that was actually and reasonably spent.

The total cost of any associated outlays should also be apportioned by the number of cases.

Where advice is being provided across different types of advice and assistance and/or legal aid this may, on occasion, result in you having to apportion the fees using slightly different travel rates.

For example, if three of the clients were being provided with advice under criminal ABWOR and one client under criminal A&A you should calculate the travel fee payable as follows:

ABWOR clients

• Relevant rate x 3  ÷ 4 = to each ABWOR file

A&A client

• Relevant rate x 1 ÷ 4  = to the A&A client

Where you travel to visit your client and provide additional advice on a separate and distinct matter, you should apportion the total time taken between all cases for that client.

Example: How to calculate travel costs for same client at same destination

30 minutes travel in each direction – total travel time is 60 minutes.

The outward travel is chargeable solely to the matter (file A) for which you initially travelled to provide the original advice ie 30 minutes; the return travel should be apportioned between both (files A and B) matters equally ie 15 minutes.

This would result in the travel time and associated mileage being charged:

• 45 minutes to file A; and
• 15 minutes to file B.

There can also be instances when you travel only intending to see one client (file A).

While you are there, you may be instructed by another client (file B) who needs advice on another matter.

In these circumstances, the outward travel costs should be charged to the case which had initiated that travel and the inward journey should be apportioned equally between both cases.

Using identical times as the example above the same approach should be adopted to apportion the travel time and associated outlays.

• 45 minutes to file A; and
• 15 minutes to file B.

Where more than one destination is involved it is important that travel is apportioned to the correct case.

For example, you might be travelling from Glasgow to Edinburgh for one client, then going on to see another client in Dunfermline and then returning to Glasgow.

You should claim the first travel to the Edinburgh case, the travel from Edinburgh to Dunfermline to the Dunfermline case then apportion the return travel to Glasgow to both cases.

(Outward journey allocated to appropriate case, return journey apportioned equally)