Waiting

Most waiting time will occur during attendances at court.

It is recognised that you will often have very little control over the length of time involved.

Waiting time should be charged to the next case calling where a solicitor is acting for a client on a single matter at court.

The exception to this is where a solicitor is acting for a client on a number of matters at court and any waiting time should be apportioned equally between the cases.

This is particularly important where the waiting includes cases chargeable on the basis of different payment arrangements (ie detailed fees and summary criminal fixed payments).

The summary criminal fixed fee includes any waiting time spent at court.

Waiting time should begin from either:

• the time the hearing was fixed to call, the time that the court or tribunal directed parties to be at the venue; or
• from the conclusion of any other business ending prior to the case calling;

whichever is shorter.

Where there is a virtual hearing, waiting time begins from the time the hearing was fixed to call or from the time that the venue contacts the solicitor to notify them to dial into a hearing.

Waiting time cannot be charged where:

• the court adjourns for lunch
• the solicitor attends court at a distant location, elects to stay overnight for the continued hearing the following day and the case has concluded for the day; or
• any period after the court hearing has concluded for the day before embarking on the journey home or to the office regardless of the location (ie where court concludes at 11:00am but the flight, ferry, train home was not until 15:00 hours no waiting time can be charged between those periods).

No other chargeable work can be undertaken during any period where a time for waiting is being claimed.

Unspecified work undertaken in advance of the time appointed for the hearing cannot be attributable to waiting time.

Your account should accurately detail what chargeable work was undertaken during this period, for example travel and necessary meetings etc.

Waiting time must be charged at the rates appropriate to waiting (ie non-advocacy fees) and not at rates appropriate to advocacy and calculated on the basis of the total time engaged per day at court including any necessary travel to and from court.

Waiting time must be allocated to the first case that calls.

This is in accordance with paragraph 15(2) of the Notes on the operation of schedule 1A.

Where a gap appears you must explain why the gap occurred.

There may be any number of reasons, but if another case called during that period, the waiting time should have been applied to that case.

Example 1

Where another case is dealt with at 10:15, the waiting time is chargeable to that case.

The chargeable time is 30 minutes, in summary case this would be chargeable at the advocacy rate applicable to when the work was done.

It is not appropriate to charge as one half hour advocacy and one quarter hour non-advocacy as that exceeds the actual time chargeable to this case.

In solemn cases it would be chargeable at 15 minutes advocacy and 15 minutes non-advocacy.

Example 2

In the event that you took a short break (for whatever reason), the waiting prior to 10:10 is chargeable to this case.

The chargeable time is 35 minutes (rounded up to 45 minutes), in solemn and summary cases, 30 minutes would be chargeable at the advocacy rate and 15 minutes at the non-advocacy rate applicable to when the work was done.

It is not appropriate to charge as one half hour advocacy and one half hour non-advocacy as that would exceed the actual time chargeable to this case.

Example 3

If the gap in time occurs as a result of appearing in court in relation to Case (a), and is on behalf of a non-legally aided client, then the preceding waiting time is not chargeable.

The chargeable time is 55 minutes (rounded up to 60 minutes), in solemn and summary cases, 45 minutes would be chargeable at the advocacy rate and 15 minutes at the non-advocacy rate applicable to when the work was done.

In criminal legal aid cases chargeable on the basis of Schedule 1A, Part 1 (detailed fees) no charge for waiting time can be claimed other than waiting at court for a hearing.

This is in accordance with paragraph 15(1) of the Notes on the operation of schedule 1A, which makes clear that:

“A fee for time spent waiting is chargeable only for time necessarily spent waiting at court for a hearing, provided that time has not been occupied in connection with another case (legally aided or not).”

Any waiting time that is claimed in cases other than at court must be restricted.

You cannot be paid a fee for waiting time for the period spent at court over the luncheon adjournment as a matter of course.

A lunchtime adjournment is not chargeable as waiting time in accordance with paragraph 15(3) of the Notes on the operation of schedule 1A.

You should always record the start and end times of the hearing including the period of the lunch adjournment.

If the narrative in your account states “conducting hearing 10:00-16:00” or “conducting the hearing – four hours” we will automatically make a deduction of one hour for lunch, on the working assumption that the tribunal stopped for lunch at 1.00 and reconvened at 2.00.

If you can justify that chargeable work has been necessary, payment can be considered in the normal manner as long as the chargeable work was not otherwise covered by any other fee which may be payable in the case.

Although it would be highly unusual for you to travel from court and back during lunch where a claim of this nature is being sought you must provide an explanation in support of any such claim otherwise the claim will be restricted.