Covid-19: Counsel – interim fee claims for preparation in criminal cases

The Scottish Government introduced temporary measures to alleviate difficulties related to the Covid-19 epidemic.

These now include the option for counsel to claim fees for preparation work in criminal cases prior to case conclusion.

This means that, subject to meeting the qualifying criteria (see below) either:

(a) an interim claim or

(b) if appointed counsel changes, a final claim by an “outgoing” counsel may be made before case conclusion.

The changes came into effect on Wednesday 1 July 2020, through the Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Coronavirus) (Scotland) Regulations 2020.

Regulation 3 of the Regulations amends schedule 2 paragraph 13 of the Criminal Legal Aid (Fees) Regulations 1989.

The measure sits alongside the other measures that have been introduced for the Covid-19 emergency period.

More generally counsel are encouraged to use, where possible, the more flexible criteria for making payment to account claims in respect of criminal legal aid.

These were published in April 2020.

This new option is likely to be most useful where the same counsel acts in a case throughout.

However, where there have been or may be changes of counsel in the course of a case, then counsel may wish to consider carefully whether a claim for interim preparation fees is appropriate, for the reasons explained below. It may be better to use the other payment to account options referred to above.

All that has changed is that there is now an option to make a claim pre-case conclusion. The underlying fee provisions are unchanged.

There is no new fee provision in the regulations.

We still need to assess at case conclusion (a) whether a separate fee is payable for preparation, and if so (b) the amount.

Accordingly, any payment made on an interim basis, prior to case conclusion is contingent on it later being established that a fee of at least the level of the interim payment was payable in the case for separate preparation.

There will be an over-claim and overpayment if:

• an earlier payment is paid in a sum that is then found to have been more than was due, or
• no separate payment for preparation is payable as a consequence of the procedural path the case has taken.

Reimbursement will be required, unless it is offset by other fees payable by us to that counsel in the same case.

That is why a counsel who is likely to remain involved for the duration of a case may find the facility to claim interim fees in respect of preparation attractive.   That is to be contrasted with the situation where there has been or are likely to be changes in counsel.

We fully understand that it is impossible to predict the procedural path, and the future involvement, in a case, but we have to make counsel aware of the risk of a repayment requirement even where it is not immediately foreseeable.

There are some fundamental principles underlying all and any claims that counsel must be aware of and accept.

We have discussed these with the Faculty of Advocates and the Society of Solicitor Advocates, with which we have liaised in the preparation of this guidance.

The core principles for Covid-19 interim preparation fees (including final fee claims by outgoing counsel prior to case conclusion) are:

1. 1. When it is established (at case conclusion) that a separate fee for preparation is payable in any given case, where there is more than one counsel who has undertaken preparation work, any apportionment of the fees between them is a matter for resolution between counsel (with the assistance of their respective professional bodies or administrative support as required or as they see fit) not SLAB. Any distributive adjustment of payment to reflect how work was actually done across the case is entirely a matter to be resolved between the respective counsel.
   2. Prior to the completion of a case, where the qualifying conditions for a claim for interim fees for preparation work are met (see below), counsel may submit a claim based on the fee that would be payable in respect of the volume of the preparation in the case to that date but any payment shall be net of any and all prior payments made in that case for separate preparation.
   3. Upon completion of a case, if a separate fee for preparation is payable in the case, then the final balance of that fee payable, if any, in terms of the volume of preparation will be paid to counsel acting at the point of case conclusion. Any apportionment of the fees paid to reflect how work was done is entirely for counsel to resolve in terms of principle 1.
   4. Upon completion of a case, if a separate fee for preparation is payable in the case, but that fee is less than the sum of the interim payments paid to date, then the overpayment will be recovered pro rata from counsel to whom interim payments were made. The actual apportionment of the remainder of the fees properly paid is entirely for counsel to resolve in terms of principle 1.
   5. Upon completion of a case, if it is determined that no separate fee for preparation is payable, and interim payments have been made, then these overpayments will be recovered from counsel by whom they were claimed (and to whom they were paid).
   6. We will liaise with counsel as to arrangements for reimbursement where this arises and where it assists, arrangements may be made for reimbursement by deduction from future payments we make, as opposed to direct payment.

The qualifying conditions for a claim are:

1. Counsel understand and accept the principles for Covid-19 claims interim preparation fees claims (detailed above)
2. That a claim may not be submitted within three months of the payment of a prior claim in respect of preparation irrespective of whether counsel remains the same or has changed.
3. The claim is otherwise in accordance with paragraphs 13 -15 of Schedule 2 of the Criminal Legal Aid (Fees) (Scotland) Regulations 1989

To lodge a claim:

Claims should be sent, in line with normal practice, directly to SLAB at the following email address:  faculty@slab.org.uk

If you have any queries on the update, please contact:

Steven Carrie, Senior Technical Specialist –  carriest@slab.org.uk