Work and time recording

You are required to retain file notes to supplement your account and copies of correspondence, documentation received throughout a case, eg reports and social work records etc.

There has to be an evidential basis for any claim for work done (or outlays incurred) on file, and you have to justify, or vouch the work undertaken on the account for the benefit of the parties controlling the fund [who] have had no voice in controlling the scale on which the expenses were incurred, see Parks v Colvilles Limited (1960) S.C. 143 per. Lord Patrick at page 153.

Given the objective basis of the assessment process, an allowance can only be made for work claimed where it is supported by appropriate evidence on the file.

The onus is on you to provide such evidence.

Evidence of the work done should, ideally, be in the form of timed and dated file or attendance notes but, where relevant, may be evidenced by relevant documentation drafted or read.

For example, you should always:

• note the client’s instructions on file
• make and retain file notes sufficient to identify the nature and the extent of all work undertaken (by reference to actual time), and by whom
• retain copies of correspondence
• retain copies of documentation especially if it has been perused or referred to in preparation for a hearing.

Documents that you have perused should be retained and provided, if required, in such a way that we can readily identify what was perused on any given occasion.

In the context of a time-based charge all actual time (to the minute) spent by a fee-earner should be recorded on file, and stated in the narrative for each account entry (subject to rounding up for the calculation of the appropriate fee).

The time expended on work should never be recorded on file in its “rounded up” form for the calculation of the fee.

Time recording systems which, for example, capture a 10 minute unit of time are unhelpful, and may result in charges contrary to the Act and Regulations, especially in the context of, say, a telephone call calculated under the Tables of Fees at up to four minutes, between four minutes (short) or 10 minutes (long).

In these circumstances, without a file note showing the actual time, we would only allow a short phone call, there being no contemporaneous vouching of the time actually spent.

The only basis for a time based charge against the Fund, calculated by reference to the Tables of Fees at Schedule 1A, Part 1, Schedule 3 Part 1 and Schedule 3 Part 2, is the actual time taken to perform the work.

Estimates of time expended are not allowed and any practice of applying “standard” fees to items of work undertaken in the course of the provision of criminal legal assistance is unacceptable eg travel, meetings, perusal etc.

In a Note of Taxation on the account PF (Dundee) v CM, 20 July 2015, the Auditor of Court (Craig Donald) held that only fees for the actual time taken to perform a piece of work should be contained in an account.

It is never appropriate to apply any formula, eg X sheets per hour to the perusal of documentation. Such a practice is wholly contrary to the structure and Tables of Fees that form the basis of remuneration.

Estimates of time expended are not allowed and any practice of applying “standard” fees to items of work undertaken in the course of the provision of criminal legal assistance is unacceptable, eg travel, meetings, perusal etc.

It is good practice for a solicitor:

• to keep a comprehensive record of time spent, regardless of the source of funding, and more particularly how that time was spent
• when providing Legal Aid or ABWOR, to record and prepare attendance notes for all of the time spent in attendance and preparation for a hearing. We may restrict a claim for preparation for a hearing (under ABWOR) if little detail has been provided as to the actual work carried out.

The absence of recorded time for any substantial amount will be allowed only in a most unusual case.

There is English case law on this issue. In Johnson v. Reed 1992 AII ER 169 the court stated:

 “Claims for unrecorded time are likely to be viewed with very considerable care on taxation and it would only be in an unusual case that any substantial allowance be made…”

Even where the work has been fully recorded, this does not mean that all the recorded time can be paid, and assessments of all time spent must be made with this in mind.

We need to be satisfied that it was reasonable to spend time on the particular item of work and that the time charged is reasonable.

The assessor must consider whether the narrative in the account contains sufficient information to justify the time spent or whether there is other supporting evidence on the file (if called for) of the work done.

Where the information available does not justify the time spent on any item of work, the claim must be reduced to the amount of time that appears reasonable.

If the assessor is in any doubt about the reasonableness of the time charged, or in respect of any other charge, that doubt must operate against the solicitor whose account is being assessed.

As well as looking at individual account entries, we must also look at the total time claimed for advising on particular issues or considering or preparing particular documents in order that any duplication of work can be identified and an assessment made of the overall time spent, eg multiple meetings or communications with the client, a number of entries in connection with perusing a document, going over the document with the client and preparation all within a short time frame in an account.