This is yet another example of how Scotland’s solicitors are undervalued and constantly expected to do more for less. It is scarcely believable that a solicitor who has undertaken the massive amount of work associated with a milestone case should receive a paltry fee of £3,000. The Law Society of Scotland has been asked for a comment.

30th July 2020
G.Y.J

For the attention of the Chief Executive of the
Scottish Legal Aid Board, Mr Colin Lancaster

And

Law Society of Scotland Legal Aid Committee

Dear Sirs

FEES PAID TO SOLICITORS IN PROGRESSING CASES TO THE UNITED KINGDOM SUPREME COURT

I recently had the satisfaction from a career perspective to be involved as an instructing agent in a case which proceeded to the Supreme Court of the United Kingdom namely ABC (Appellant) -v- Principal Reporter and Another (Respondents)(Scotland) in the matter of XY (Appellant)(Scotland) which is reported under 2020 (UKSC26). The judgment of Lady Hale and Lord Hodge (with whom Lord Kerr, Lord Wilson and Lady Arden agree) was given on the 18th of June 2020.

The case involved the rights of relevant persons to attend at children’s panel proceedings. Eight QCs were instructed along with 10 junior counsel. My firm acted for one of the parents of the children involved in one of these cases. Along with the agent for the other parent, given that there were no conflicts of interests, we “shared” or jointly instructed our junior counsel.

The case was heard on the 13th and 14th of November 2019. Understandably the case involved a great deal of work for all of the advocates concerned and the solicitors instructed in the case.

I had expected that when it came to submitting the fees for the same that an uplift in solicitors’ fees could be applied for from the Scottish Legal Aid Board. It was therefore extremely disappointing to say the least when I realised that this is not possible.

Insofar as counsel are concerned under the Legal Aid (Scotland (Fees) Regulations 1989), Regulation 10(2) states: “Counsel’s fees for any work in relation to proceedings in the Supreme Court, Restrictive Practices Court, Employment Appeal Tribunal, Lands Valuation Appeal Court, Scottish Land Court or Lands Tribunal for Scotland or before the Upper Tribunal or the Social Security Commissioners, shall be 90% 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”.

A significant indicator of the level of fees payable to counsel is that set out within the UK SC Practice Directions, Practice Direction 13. Those fees indicate the level of renumeration which counsel would expect to receive in a non-legal aid case and as such and in terms of Regulation 10(2) noted above the Scottish Legal Aid Board would look to make payment of 90 per cent of those rates depending upon the specific factors of the case such as travel etc.

In this particular case, as I understand, matter fees were sought by seniors within the region of £35,000 per senior and for juniors around £19,000 each, from the Scottish Legal Aid Board.

Our own account was restricted to just over £3,000.

Insofar as solicitors legal aid fees for work done in the UK Supreme Court these are prescribed by statute namely the Legal Aid (Scotland) (Fees) Regulation 1989. The relevant regulation is 5(3), which states: “a solicitor’s fees in relation to proceedings in the Supreme Court on appeal from the Court of Session or under paragraph 10- or 33 of Schedule 6 to the Scotland Act 1998, Employment Appeal Tribunal, Lands Valuation Appeal Court, Scottish Land Court or Lands Tribunal for Scotland or before the Upper Tribunal or the Social Security Commissioners, shall be calculated in accordance with Schedule 5”. Schedule 5 is the legal aid table of detailed fees.

It would appear therefore that for solicitors that there is no provision for an application to the United Kingdom Supreme Court for additional fees which seems to me to be most unfair. In my view, there should be some provision for an uplift in fees from the lowly solicitors involved in these type of cases on legal aid rates. There is such a provision in relation to the Court of Session and the Sheriff Appeals Court cases for an uplift in fees to be made to the court.

I am therefore forwarding this communication by way of an open letter to both the Legal Aid Board and to the Legal Aid Committee at the Law Society of Scotland. I would hope that this matter can be progressed and taken forward for the profession as a whole so that at the very least regulations can be put in place to allow for solicitors to charge on the same basis as counsel or alternatively for an uplift to be made directly from the court.

I await your responses with interests.

Yours sincerely

Yvonne McKenna