One of Arnot Manderson’s advocates, Fergus Whyte, recently appeared as junior counsel in an important case before the Inner House on legal aid rules and sums up the decision here.

Background

On 21 January 2021, the Inner House released its Opinion on a note of objections to the decision of the Auditor on counsel’s fees in relation to a legally aided matter (Note of Objections to the Auditor’s Report (Beroghani – Leave to Appeal from the Upper Tribunal) [2021] CSIH 3). The Civil Legal Aid (Scotland)(Fees) Regulations 1989 (the Regulations) provide that if the Scottish Legal Aid Board (SLAB) rejects a fee submitted by counsel then the matter is referred to the Auditor of the Court of Session. If either side disagrees with that decision then the matter can be ‘appealed’ by way of a note of objections to the Court of Session.  

The Noter (Mungo Bovey QC) appeared at a hearing in the Inner House seeking permission to appeal to the court from a decision of the Upper Tribunal. Notes of argument were prepared for the hearing which lasted around 3 hours. The Noter submitted a fee to SLAB covering both the hearing and the preparation for it totalling £2,500 (plus VAT) (at [4]). SLAB disputed this fee and the matter was referred to the Auditor (at [5]).

In his report, the Auditor ruled that there was no entitlement to preparation and that the fee should be abated to £487.50 (plus VAT) (at [6]). Counsel objected to the Auditor’s report which led to the matter coming before the Inner House.

The submissions and the Opinion

Before the Inner House, it was common ground that Schedule 4 of the Regulations created two types of fees: ‘prescribed’ and ‘assessed’ fees. Prescribed fees were those set out in Schedule 4’s Table of Fees while assessed fees were to be determined by the Auditor as appropriate to provide reasonable remuneration for the work done (para 3 of Schedule 4). Schedule 4 also provided that a separate amount for preparation would not normally be allowed unless it was for “a proof, debate or like hearing” and certain additional conditions were met (para 5 of Schedule 4).

At the hearing, it was accepted by all parties that the hearing was not a prescribed but an assessed fee as there was no provision for appearance at permission hearings of this type by senior counsel in the Table of Fees (at [29]). As such, SLAB and the Auditor would have to assess what was a reasonable fee with regard to all the circumstances of the case. While SLAB or the Auditor could have regard to the levels of prescribed fees, this did not mean assessment should treat it as if it were a prescribed fee (at [30]). As the court noted “[t]he overriding aim of the exercise in paragraph 3 is to provide reasonable remuneration for the work” (at [30]). As such, the Noter’s fee was to be assessed on the basis of what was reasonable remuneration for the work done including the preparation for the permission hearing (all of which, it was accepted, was reasonable and necessary).

The Court agreed with earlier authorities holding that access to justice and the legislative policy behind the legal aid regime would require a proper or reasonable fee for the work done (and not one that was uneconomical) so that counsel would be able to accept instructions in legally aided matters (at [32] – [33]).

On this basis, the Inner House rejected the methodology that SLAB and the Auditor had used in reaching the assessed fee for the Noter which it saw as incorrectly relying too heavily on analogies to the Table to Fees (rather than what was reasonable remuneration) and in making no allowance for preparation (at [35]). In doing so, the court held that para 5 of Schedule applied only to prescribed fees and not to assessed fees (at [36]).

While strictly speaking obiter, the Court also considered what was meant by the words “a proof, debate or like hearing” and whether the Auditor had been right to accept that a permission hearing was not a “like hearing” (at [37]). The Inner House noted that what qualifies will require a careful consideration of the circumstances and nature of the hearing involved and that a permission hearing would often have many features meaning it was similar to a debate (at [37] – [38]).

Effect of the decision

The outcome of this case is important for a number of reasons as it provided an opportunity for the Inner House to interpret the Regulations and make a number of important statements on their effect:

• Care should be taken to determine whether a fee is a ‘prescribed’ or ‘assessed’ fee, looking closely at the items covered by each of the tables, and different procedures will apply to each;
• Where fees are ‘assessed’ then the fee will need to be considered by SLAB or the Auditor with a view to what is reasonable remuneration for the work undertaken including any preparation for hearing should that be required;
• The concept of reasonable remuneration may include consideration of the level of prescribed fees but will not necessarily be the same as them and should include wider considerations of whether the fee is a reasonable having regard to wider concerns of access to justice and fairly remunerating counsel to appear in legal aid matters; and
• Where fees are prescribed then there will not normally be an additional fee for preparation but the Inner House has noted that the concept of a “proof, debate or like hearing” is one that needs to be applied flexibly having regard to all the circumstances of the case.

While these points relate strictly only to the civil legal aid, there may be elements of the decision (particularly in terms of what is considered reasonable remuneration and the importance of access to justice) that may have a bearing on criminal legal aid practitioners as well. In terms of the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, their structure is similar to their civil counterparts insomuch as they divide matters into ‘prescribed’ and ‘assessed’ fees and they also use the language of “reasonable remuneration” for assessed fees (see para 2, Sch 2 of those regulations).

Equally, while the case related to the fees of counsel, nothing in the decision suggests that the general principles articulated by the Inner House would not also apply to solicitors undertaking legal aid work.