Sheriff rules in favour of SLAB in dispute over solicitor’s fee following accused’s change of plea



A lawyer who is instructed by a person initially represented by a duty solicitor is only entitled to payment of half of the fixed fee where the accused changes their plea to guilty prior to the commencement of the trial or where the client offers a “mixed plea”.

A sheriff has ruled in favour of the Scottish Legal Aid Board on the interpretation of the summary criminal legal aid regulations - an issue which he said had been the subject of dispute between the board and solicitors in various courts on “a number of occasions” and “remains contentious”.

Sheriff Alan Miller at Glasgow held that under regulation 4(5B) of the Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, in circumstances where an accused person appears in court on a summary criminal complaint containing more than one charge and initially pleads not guilty while represented by a duty solicitor, but subsequently through a nominated solicitor of his or her own choosing pleads guilty to certain charges and not guilty to others, which the Crown accept, only half the fixed fee is payable.

The court heard that the accused Scott Redmond appeared from custody in Glasgow Sheriff Court in August 2013 and, represented by a duty solicitor, pled not guilty to all six charges on a summary complaint.

Diets were assigned and the accused was granted bail, and he then instructed solicitor Martin Lavery, who applied for and was granted legal aid.

In due course, on the day of the trial diet Mr Redmond tendered pleas of guilty to four of the charges and not guilty to the remaining two.

The procurator fiscal accepted these pleas and the matter was brought to a conclusion without proceeding to trial.

Subsequently, a dispute arose about the fees to which Mr Lavery was entitled under the legal aid certificate.

He contended that he was entitled to a fixed payment of £485 by way of fees, but the view of the Scottish Legal Aid Board was that he was entitled only to half of that fee.

Solicitors in this and other cases argued that regulation 4(5B) was unclear and the restriction only applied where the subsequent guilty plea was in respect of either a sole charge or all charges on the complaint.

The auditor of court, having appeared to have taken into account issues of “fairness and reasonableness”, ruled in Mr Lavery’s favour on the basis of the submission that regulation 4(5B) was “ambiguous” and that the board’s interpretation of it would lead to “absurd results”.

However, the board lodged a note of objections to that determination, arguing that the auditor had “misdirected himself in law”.

The regulations have since been amended in the board’s favour to remove any confusion over their interpretation.

Sheriff Miller observed that when considered on its own, there was “undoubtedly a degree of uncertainty” as to the application of regulation 4(5B)(c) in all situations.

He said the question was one of statutory interpretation, “and I do not consider it particularly helpful to seek to pray in aid broad notions of fairness or reasonableness”. “Nor do I consider it necessary to stray far into statements of policy, beyond acknowledging the perhaps obvious point that a central purpose of the provisions introduced by the 2011 Amendment regulations was to save money,” he added.

What was essential, he continued, was to consider the disputed text in context of the terms of the regulations as a whole.

When regulation 4(5B) was read along with the schedules that elaborated its provisions, which referred to a “diet at which a plea of guilty is made and accepted”, he said “the argument tilts conclusively in the board’s favour”.

“That reading is consonant with the scheme of the 1999 Regulations when taken as a whole”, he continued. “That scheme is one of modifiable fixed payments. By definition, in such a scheme the level of remuneration received in an individual case may bear little relation to the actual volume of work involved in that case.”

Sheriff Miller’s Note concluded: “When the terms of the regulation under scrutiny are read in the context of the 1999 Regulations as a whole, there is no question that the board were correct to reduce the solicitor’s core fee by one-half. There is nothing in the scheme of the Regulations, in the wider statutory context, or in the now amended terms of the specific regulation that undermines that view.

“For the reasons given, I find no particular assistance in the previous (non-binding) decisions to which I was referred. Accordingly, I sustain the note of objections and remit to the auditor to amend his report so as to reduce the core fee payable to Mr Lavery from £485 to £242.50.”