Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1989

• Citation: S.I. 1989/434
• Sections: 84

Section 1 Citation and commencement

(1) This Act of Sederunt may be cited as the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1989 and shall come into force on 12th April 1989.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Section 2 Application

(1) The Schedule to this Act of Sederunt applies to work done or expenses incurred on or after the date on which this Act of Sederunt comes into force.

(2) The Schedule to this Act of Sederunt shall not apply to fees for work done, expenses or outlays incurred or to the taxation of accounts for which the Secretary of State may make regulations under and by virtue of section 14A of the Legal Aid (Scotland) Act 1967 or Section 33 of the Legal Aid (Scotland) Act 1986 .

Section 3 Revocation and saving

(1) The Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1988 is revoked.

(2) Notwithstanding the revocation in sub-paragraph (1) of this paragraph, the provisions of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1988 shall continue to have effect in respect of work done expenses or outlays incurred, before the coming into force of this Act of Sederunt.

Section 1

The Table of Fees in this Schedule shall regulate the taxation of accounts between (a) solicitor and client, client paying, (b) solicitor and client, third party paying and (c) party and party; and shall be subject to the aftermentioned powers of the sheriff to increase or modify such fees.

Section 2

The pursuer’s solicitor’s account as between party and party shall be taxed by reference to the sum decerned for unless the sheriff otherwise directs.

Section 3

Where an action has been raised under summary cause procedure, only expenses under Chapter IV of the Table of Fees shall be allowed unless the sheriff otherwise directs.

Section 4

Fees for work done in terms of the Social Work (Scotland) Act 1968 shall be chargeable under Chapter III of the Table of Fees.

Section 5

The sheriff shall have the following discretionary powers in relation to the Table of Fees:—

(a) In any case the sheriff may direct that expenses shall be subject to modification.

(b) In cases of importance or requiring special preparation, the sheriff may, upon a motion made not later than seven days after the date of any interlocutor disposing of expenses, pronounce a further interlocutor regarding these expenses allowing a percentage increase in a cause on the ordinary roll, not exceeding 50 per cent, and in a cause on the summary cause roll, not exceeding 100 per cent, of the fees authorised by this table to cover the responsibility undertaken by the solicitor in the conduct of the litigation. Where such an increase is allowed a similar increase may, if the sheriff so orders, be chargeable by each solicitor in the cause against his own client. In fixing the amount of the percentage increase the following factors shall be taken into account:—

(i) the complexity of the litigation and the number, difficulty or novelty of the questions involved;

(ii) the skill, specialised knowledge and responsibility required of and the time and labour expended by the solicitor;

(iii) the number and importance of the documents (however brief) prepared or perused;

(iv) the place and circumstances of the litigation or in which the solicitor’s work of preparation for and conduct thereof has been carried out;

(v) the importance of the litigation or the subject-matter thereof to the client;

(vi) the amount or value of money or property involved:

(vii) any other fees and allowances payable to the solicitor in respect of other items in the same litigation and otherwise charged for in the account.

(c) Where a party or his solicitor on one side attends any diet of proof or debate or any meeting ordered by the sheriff and the other is absent or not prepared to proceed the sheriff shall have power to decern against the latter party for payment of such expenses as the sheriff may consider reasonable. If an appeal be abandoned, or any debate on preliminary pleas or otherwise ordered by the sheriff be departed from by any party and notice to that effect be given to the opposite party at least three lawful days before the date fixed for the hearing no debate fee shall be allowed; but failing such notice a debate fee shall be allowed to the respondent’s or other party’s solicitor of one-half of the amount which would have been allowed had the debate proceeded.

Section 6

The expenses to be charged against an opposite party shall be limited to proper expenses of process without any allowance (beyond that specified in the Table of Fees) for preliminary investigations, subject to this proviso, that precognitions, plans, analyses, reports, and the like (so far as relevant and necessary for proof of the matters in the Record between the parties), although taken or made before the raising of an action or the preparation of defences, or before proof is allowed, and although the case may not proceed to trial or proof, may be allowed.

Section 7

Save as otherwise provided in the Table of Fees it shall be in the option of the solicitor to charge an account either on the basis of the inclusive fees of Chapters I and II or on the basis of the detailed fees of Chapter III of the Table of Fees, but in accounts as between party and party it shall not be competent to make charges partly on the one basis and partly on the other. In accounts as between solicitor and client, however, it shall be competent to charge an account partly on the basis of the inclusive fees of Chapters I and II and partly on the basis of the detailed fees of Chapter 111 of the Table of Fees, but if an inclusive fee is charged under Chapters I or II no work falling thereunder shall be charged again under Chapter III.

Section 8

In order that the expenses of litigation may be kept within proper and reasonable limits only such expenses shall be allowed in the taxation of accounts between party and party as are necessary for conducting it in a proper manner. It shall be competent to the auditor to disallow all charges for papers, parts of papers or particular procedure or agency which he shall judge irregular or unnecessary.

Section 9

Notwithstanding that a party shall be found entitled to expenses generally yet if on the taxation of the account it shall appear that there is any particular part of the litigation in which such party has proved unsuccessful or that any part of the expenses has been occasioned through his own fault he shall not be allowed the expense of such parts of the proceedings.

Section 10

When a remit is made by the court regarding matters in the record between the parties to an accountant, engineer, or other reporter the solicitors shall not, without special agreement, be personally responsible to the reporter for his remuneration, the parties alone being liable therefor.

Section 11

In all cases, the solicitor’s outlays reasonably incurred in the furtherance of the litigation shall be allowed. These outlays shall include a charge in respect of posts and sundries of 12 per cent. of the taxed amount of fees.

Section 12

In the taxation of accounts as between party and party where counsel is employed—

(a) counsel’s fees and the fees for instruction of counsel in paragraph 19 of Chapter ll or in a detailed account charged under Chapter III of the Table of Fees are to be allowed only where the sheriff has sanctioned the employment of counsel; and

(b) except on cause shown fees to counsel and solicitor for only one consultation in the course of the case are to be allowed except where counsel is employed both before the sheriff and the sheriff principal and there is a consultation prior to the debate on the appeal when fees for an additional consultation are to be allowed.

Section 13

In the case of all solicitors' charges to which these Regulations relate, where those charges are taxable supplies in terms of the Finance Act 1972 and are supplied by a solicitor who is a taxable person within the meaning of that Act, an addition may be made to the charges of such amount as is equivalent to the rate of Value-Added Tax at the date of supply, and this additional sum shall be so described in the solicitor’s account.

Section 14

In Chapter IV of the Table of Fees—

(a) necessary outlays, including—

(i) in relation to Part II only, a charge in respect of post and sundries of I2 per cent. of the fees allowed;

(ii) fees for witnesses calculated as provided by Act of Sederunt;

are allowed in addition to the fees allowed under this Chapter;

(b) in Parts I and II, sheriff officers' fees and the costs of advertising are allowable as outlays;

(c) in Parts I and II, in respect of paragraph 3 (attendance at court), no fee is allowable for attendance at a continuation of the first calling, unless specially authorised by the court;

(d) in Part II, in respect of paragraph 7 (precognitions), in a case where a skilled witness prepares his own precognition or report, half of the drawing fee is allowable to the solicitor for revising and adjusting it;

(e) in Part II, in respect of paragraph 15, no fees shall be allowed in respect of accounts of expenses when the hearing on the claim for expenses takes place immediately on the sheriff or sheriff principal announcing his decision;

(f) all fees chargeable under this Chapter in respect of the actions mentioned in the left-hand column of the following table shall unless the sheriff, on a motion in that behalf, otherwise directs be reduced by the amount of the percentage specified opposite those actions in the right-hand column of the following table:—

“value” in relation to any action in which a counterclaim has been lodged, is the total of the sums craved in the writ and the sum claimed, in the counterclaim.

(g) in Part I, in respect of paragraph l (instruction fees), in relation to actions for reparation there are allowable such additional fees for precognitions and reports as are necessary to permit the framing of the writ, together with necessary outlays in connection therewith; and

(h) in Part II, the fee allowable in respect of paragraph l4. (supplementary note of defence) is a fixed fee allowable only when a supplementary note of defence is ordained by the court.

Section 1

Actions (other than those specified in paragraph 2 of this Chapter) in which decree is granted without proof—

(a) Inclusive fee to cover all work from taking instructions up to and including obtaining extract decree

Section 1

In any undefended action of divorce or separation and aliment where—

(a) the facts set out in section 1(2)(b) (unreasonable behaviour) of the Divorce (Scotland) Act 1976 (“the 1976 Act ”) are relied upon;

(b) there is no crave relating to any ancillary matters; and

(c) the pursuer seeks to prove those facts by means of affidavits,

the pursuer’s solicitor may, in respect of the work specified in column 1 of Table A, charge the inclusive fee specified in respect of that work in column 2 of that Table.

Section 2

Actions of separation and aliment, adherence and aliment and custody and aliment where proof (other than by way of affidavit evidence) takes place—

(a) Inclusive fee to cover all work from taking instructions up to and including obtaining extract decree

Section 2

In any undefended action of divorce or separation and aliment where—

(a) the facts set out in sections 1(2)(a) (adultery), 1(2)(c) (desertion), 1(2)(d) (two years' non-cohabitation and consent) and 1(2)(e) (five years' non-cohabitation) of the 1976 Act are relied on;

(b) there is no crave relating to any ancillary matters; and

(c) the pursuer seeks to prove those facts by means of affidavits,

the pursuer’s solicitor may, in respect of work specified in column 1 of Table B, charge the inclusive fee specified in respect of that work in column 2 of that Table.

Section 3

Petition for appointment or discharge of a curator bonis

(a) Inclusive fee to cover all work enquiring into estate and taking instructions up to and including obtaining extract decree

Section 3

If—

(a) the pursuer’s solicitor charges an inclusive fee under either paragraph 1 or paragraph 2 of this Part; and

(b) the action to which the charge relates includes a crave relating to an ancillary matter,

in addition to that fee he may charge, in respect of the work specified in column I of Table C, the inclusive fee specified in respect of that work in column 2 of that Table.

Section 4

If the pursuer’s solicitor elects to charge an inclusive fee under this Part he shall endorse a minute to that effect on the initial writ before extract of the decree is ordered; and when the option is so exercised decree for expenses shall be granted against the defender for said sum together with outlays up to £85 inclusive of VAT without the necessity for taxation. If outlays in excess of £85 are claimed, an account of such outlays shall be remitted to the auditor of court for taxation and the sum allowed for outlays shall be the amount of the account as taxed.

Section 1

Instruction fee—

(a) To cover all work (except as hereinafter otherwise specially provided for in this chapter) to the lodging of defences including copyings

Section 1 Note

In each case to cover all consultations, revisal of papers and all incidental work.

Section 2

Adjustment fee—To cover all work (except as hereinafter otherwise specially provided for in this Chapter) in connection with the adjustment of the Record including (when appropriate) closing thereof, making up and lodging Closed Record and copyings—

Section 2 Note

Fee to counsel to be allowed as outlay.

Section 3

Affidavit fee—To framing affidavits, per sheet

Section 4

(a) Debate fee—To include preparation for and conduct of any hearing or debate other than on evidence, enquiring for cause at avizandum and noting interlocutor—

Section 5

Precognitions—Taking and drawing—per sheet

Section 6

Custody reports obtained under order of court—

Section 7

Commissions to take evidence—

(a) On Interrogatories—

(i) Fee to solicitor applying for commission to include drawing, intimating and lodging motion, drawing and lodging interrogatories, instructing commissioner and all incidental work (except as otherwise specially provided for in this chapter) but excluding attendance at execution of commission

Section 8

Specification of documents—

(a) Fee to cover drawing, intimating and lodging specification and relative motion and attendance at court debating specification

Section 9

Amendment of Record—

(a) Fee to cover drawing, intimating and lodging minute of amendment and relative motion and relative attendances at court—

Section 10

Motions and minutes—

(a) Fee to cover drawing, intimating and lodging any written motion or minute, including a reopening note, and relative attendances at court (except as otherwise provided for in this chapter)—

Section 11

Procedure preliminary to proof—

(a) Fee to cover fixing diet of proof, citation of witnesses, and generally preparing for trial or proof and if necessary instructing shorthand writer—

(i) If action settled or abandoned not later than 14 days before the diet of proof

Section 12

Conduct of proof or trial—

(a) Fee to cover conduct of proof or trial and debate on evidence if taken at close of proof—per quarter hour

Section 13

Debate on evidence—

(a) Where debate on evidence not taken at conclusion of proof, preparing for debate

Section 14

Appeals—

(a) To sheriff principal—

(i) Fee to cover instructions, marking of appeal or noting that appeal marked, noting diet of hearing thereof and preparation for hearing

Section 15

Settlements

(a) Judicial tender—

(i) Fee for preparation and lodging or for consideration of minute of tender

Section 16

Final procedure—

(a) Fee to cover settling with witnesses, enquiring for cause at avizandum, noting final interlocutor

Section 17

Copying fees—

Copying all necessary papers by any means—

Section 18

Process fee—

Fee to cover all consultations between solicitor and client during the progress of the cause and all communications, written or oral, passing between them—10 per cent. on total fees and copyings allowed on taxation.

Section 19

Fee for instruction of counsel—

Section 1

Attendance at court conducting trial proof or formal debate or hearing—per quarter hour

Section 2

Time occupied in the performance of all other work including attendances with client and others and attendances at court in all circumstances, except as otherwise specifically provided—

Section 3

Drawing all necessary papers (other than affidavits) (the sheet throughout this Chapter to consist of 250 words or numbers)-per sheet

Section 4

Framing affidavits—per sheet

Section 5

Revising papers where revisal ordered—for each five sheets