The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1994

• Citation: S.I. 1994/1015
• Sections: 57

Section 1 Citation, commencement and interpretation

(1) These Regulations may be cited as the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1994 and shall come into force on 5th May 1994.

(2) In these Regulations “the principal Regulations ” means the Civil Legal Aid (Scotland) (Fees) Regulations 1989( ).

Section 2 Application

(1) Regulations 3, 5, 7 and 8(2) shall apply only in relation to any case where–

(a) legal aid is made available on or after 5th May 1994; and

(b) all work in respect of which legal aid is made available was done on or after that date.

(2) Regulations 4, 6 and 8(1) shall apply only in relation to any case where–

(a) all work in respect of which legal aid is made available was done on or after 5th May 1994; and

(b) the cause or action in respect of which legal aid is made available was commenced on or after 1st January 1994.

Section 3 Amendment of the principal Regulations

In regulation 2(1) of the principal Regulations( ) (interpretation)–

(a) in the introduction after the word “context” there shall be inserted the word “otherwise”;

(b) for the definitions of “counsel”, “junior counsel” and “junior”, there shall be substituted–

“counsel” includes a solicitor-advocate, except in regulation 10(2) and Schedule 2;

“junior counsel” or “junior” includes a junior solicitor-advocate;

(c) for the definition of “rights of audience solicitor” to the end of Regulation 2(1) there shall be substituted the following provisions–

“right of audience” means, in relation to a solicitor, a right of audience in the Court of Session, the House of Lords and the Judicial Committee of the Privy Council which a solicitor has by virtue of section 25A (rights of audience in specified courts) of the Solicitors (Scotland) Act 1980( );

“senior counsel” or “senior” includes a senior solicitor-advocate except in paragraph (1A) below;

“solicitor-advocate” means a solicitor, whether instructed by another solicitor or not, when and only when he is exercising his right of audience or acting in connection with the exercise of such a right and “junior solicitor-advocat” and “senior solicitor-advocate” shall be construed in accordance with paragraph (1A) below;

and, unless the context otherwise requires, any reference in these Regulations to a solicitor shall not include a solicitor when acting as a solicitor-advocate.

(1A) For the purposes of these Regulations, a solicitor-advocate shall be–

(a) a senior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a senior counsel in a case in the House of Lords or where the Board has authorised the employment of senior counsel under regulation 21(1)(b) or (2) of the Civil Legal Aid (Scotland) Regulations 1987( ); or

(b) a junior solicitor-advocate, where he is undertaking work equivalent to that which would be done by a junior counsel, irrespective of whether or not the Board has authorised the employment of senior counsel in the case.

Section 4 Amendment of the principal Regulations

In regulation 5(4) of the principal Regulations for paragraph (g) there shall be substituted–

(g) the steps taken with a view to settling the proceedings, limiting the matters in dispute or limiting the scope of any hearing; and

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

Section 5 Amendment of the principal Regulations

After paragraph (2) of regulation 10 of the principal Regulations( ), there shall be inserted–

(2A) The fees of a solicitor-advocate for any work in relation to proceedings in the House of Lords shall be 90 per cent of the amount of fees which would be allowed for that work on a taxation of expenses between solicitor and client, third party paying, if the work done were not legal aid.

Section 6 Amendment of the principal Regulations

For the Table of Fees set out in Schedule 2 to the principal Regulations( ) (fees of solicitors for proceedings in the sheriff court) there shall be substituted the Table of Fees set out in the Schedule to these Regulations.

Section 7 Amendment of the principal Regulations

For paragraph 1 of Schedule 4 to the principal Regulations( ) (fees of counsel for proceedings in the Court of Session), there shall be substituted the following paragraph:–

(1) Subject to the following provisions of this Schedule, the fees of counsel and of solicitor-advocates shall be calculated in accordance with the Table of Fees in this Schedule and the fee of a solicitor-advocate for undertaking an item of work shall be–

(a) where he is acting as a junior solicitor-advocate, the same as that allowable to a junior counsel for undertaking an item of work equivalent to that undertaken by the solicitor-advocate; or

(b) where he is acting as a senior solicitor-advocate, the same as that allowable to a senior counsel for undertaking an item of work equivalent to that undertaken by the solicitor-advocate.

Section 8 Revocations

(1) The Civil Legal Aid (Scotland) (Fees) Amendment (No.2) Regulations 1990( ), regulation 4(b) of the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1991( ) and regulation 3 of the Civil Legal (Fees) Amendment Regulations 1992( ) are hereby revoked.

(2) The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 1993( ) are hereby revoked.

Section 1

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

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

(b) 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 in this paragraph charge the inclusive fee specified in respect of that work in column 2 of that Table.

(1) All work to and including the period of notice

(2) All work from the period of notice to and including swearing affidavits

(3) All work from swearing affidavits to and including sending extract decree

(4) All work to and including sending extract decree

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 copying

Section 1

Fee, to include taking instructions, framing summons and statement of claim, obtaining warrant for service, serving, instructing service as necessary by sheriff officer (where appropriate), attendance endorsing minute for and obtaining decree in absence and extract decree and including posts and incidents

Section 1

(a) Instruction fee for pursuer’s solicitor, to include taking instructions, framing summons and statement of claim, obtaining warrant for service, enquiring for notice of intention to defend, attendance at first calling, noting defence

Section 1

Petition for decree dative

Inclusive fee for taking instructions to present petition, drawing petition and making necessary copies, lodging and directing publication, attendance at court, moving for decree-dative, extracting decree where necessary and all matters incidental to petition

Section 2

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

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

(b) 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 B in this paragraph charge the inclusive fee specified in respect of that work in column 2 of that Table.

(1) All work to and including the period of notice

(2) All work from the period of notice to and including swearing affidavits

(3) All work from swearing affidavits to and including sending extract decree

(4) All work to and including sending extract decree

Section 2

Precognitions–taking and drawing–per sheet

Section 2

Service

(a) Citation by post wheresoever after the first citation for each party

Section 2

Service

(a) Citation by post within the United Kingdom, Isle of Man, Channel Islands, or the Republic of Ireland–for each party

Section 2

Restriction of Caution

Inclusive fee for taking instructions to prepare drawing petition and making necessary copies, lodging, instructing advertisement and all matters incidental to petition

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 1 of Table C in this paragraph the inclusive fee specified in respect of that work in column 2 of that Table.

TABLE C

(1) All work to and including the period of notice

(2) All work from the period of notice to and including swearing affidavits

(3) All work under items 1 and 2

Section 3

Productions–

(a) For lodging productions–each inventory

Section 3

Attendance at court

Section 3

Attendance at court

Attendance at any diet except as otherwise specifically provided

Section 3

Fees for other work shall be chargeable according to Schedule 3.

Section 4

Adjustment fee–To cover all work (except as otherwise specially provided for in this Chapter) in connection with the adjustment of the Record including, making up and lodging certified copy Record—

(a) Fee to solicitor for any party

Section 4

Preparing for proof, to include all work in connection with proof not otherwise provided for

Section 5

Fee for framing affidavits–per sheet

Section 5

Fee to cover preparing for adjourned diet and all incidental work if diet postponed for more than 6 days–for each adjourned diet

Section 6

Options Hearing–Fee to include preparation for and conduct of Options Hearing (or First Hearing in defended family actions) and noting interlocutor —

(a) Where hearing does not exceed one half hour

Section 6

Drawing and lodging inventory of productions, lodging the productions specified therein and considering opponents' productions (to be charged once only in each process)

Section 7

Additional Procedure–For all work subsequent to Options Hearing including preparation for and attendance at procedural hearing —

Where hearing does not exceed one half hour

Section 7

Precognitions

Drawing precognitions, including instructions, attendances with witnesses and all relative meetings and correspondence–per witness

Section 8

Debate (other than on evidence)—

(a) Where counsel not employed—

(i) To include preparation for and all work in connection with any hearing or debate other than on evidence

Section 8

Motions and minutes

Fee to cover drawing, intimating and lodging of any written motion or minute, excluding a minute or motion to recall decree, and relative attendance at court (except as otherwise provided in this Chapter)—

(a) Where opposed

Section 9

Interim Interdict Hearings—

(a) Preparation for each hearing–each party

Section 9

Fee to cover considering opponent’s written motion or minute excluding a minute or motion to recall decree, and relative attendance at court—

(a) Where motion or minute opposed

Section 10

Reports obtained under order of court, excluding auditor’s report—

(a) Fee for all work incidental thereto

Section 10

Conduct of proof

Fee to cover conduct of proof and debate on evidence taken at close of proof–per half hour

Section 11

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 11

Settlements

(a) Judicial tender—

Fee for consideration of, preparing and lodging minute of tender

Section 12

Specification of documents—

(a) Fee to cover drawing, intimating and lodging specification and relative motion—

(i) Where motion unopposed

Section 12

Specification of documents

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

Section 13

Amendment of Record—

(a)

(i) Fee to cover drawing, intimating and lodging minute of amendment and relative motion

Section 13

Commissions to take evidence

(a) Fee to cover drawing, lodging and intimating motion and attendance at court—

(i) Where opposed

Section 14

Motions and minutes—

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

(i) Where opposed

Section 14

Supplementary note of defence (when leave granted to lodge)

Section 15

Hearing Limitation—

Fee to include work (except as otherwise specially provided for in this Chapter) undertaken with a view to limiting the scope of any hearing, and including the exchange of documents, precognitions and expert reports, agreeing any fact, statement or document not in dispute, preparing and intimating any Notice to Admit or Notice of Non-Admission and preparing and lodging any Joint Minute, not exceeding

Section 15

Appeals

Fee to cover instructions, marking of appeal or noting that appeal marked, noting of diet of hearing and preparations for hearing

Section 16

Procedure preliminary to proof—

(a) Fee to cover all work, preparing for proof (except as otherwise specially provided in this Chapter)—

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

Section 16

Final Procedure

Fee to cover settling with witnesses, enquiries at avizandum, notin final interlocutor

Section 17

Conduct of proof—

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