Civil legal aid in the supreme courts

The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2011 came into effect on 1 April 2011. The 2011 Regulations amend the Civil Legal Aid (Scotland) (Fees) Regulations 1989, which set out a scheme for the remuneration of advocates and solicitor advocates appearing for assisted persons.

The original schedule to the 1989 Regulations contained a static scale of fees which had long since fallen into disuse with the effects of inflation and the passage of time. In practice the Scottish Legal Aid Board (“SLAB”) purported to pay counsel’s fees at the rate of around 90% of the prevailing commercial rate. In reality SLAB paid somewhat less than this and often many years after the work had been undertaken.

SLAB’s deviation from the 1989 schedule of fees arose not from its equitable and generous nature but in consequence of counsel’s right under the 1989 Regulations to seek a taxation and have the auditor fix a reasonable remuneration for the work undertaken. Although counsel rarely sought taxation, the opportunity so to do ensured SLAB paid reasonable levels of fees to counsel in order to avoid the Auditor and have a level of reasonable rates established. This system was generally recognised as being a fair one and solicitors found they had little difficulty in securing suitable counsel to appear for legally aided persons in the courts.

The 2011 amendment may radically disrupt the availability of suitable counsel, whether advocate or solicitor advocate, to appear for assisted persons in the courts. The 2011 Regulations now exclude the availability of taxation to fix a reasonable fee. Instead counsel will now be paid according to the new scale of fees.The scale of fees set out in the 2011 Regulations is well below those rates paid under the substituted scheme. For example the drafting of a summons is fixed at £300, notes on liability or quantum are fixed at £150-£350, consultations are £125-£200 and proof days are £900 per day including preparation.

Where the schedule fixes a scale of fee, the lower fee will in most cases be what is paid. To qualify for a uplift counsel must satisfy SLAB that the work undertaken is difficult or novel. The vast majority of cases will not be deemed to be sufficiently novel or difficult to attract an uplift. Indeed the fee structure acts as a powerful incentive to avoid cases which are difficult or novel on the basis of risk and opportunity cost.

Down to the individual

The adoption of the new regime has drawn a scathing and witty response from Faculty: “The incurable optimist with no previous experience of the operation of civil legal aid in Scotland might be forgiven that the proposed (2011) regulations would fix a reasonable level of fees and operate without the necessity of intervention from the Auditor. Those with experience of how civil legal aid has been operated over the past 15 years might be forgiven for thinking otherwise.”

The established civil legal aid fees had, until 1 April 2011, been deemed by Faculty as being reasonable remuneration, thus ensuring the availability of counsel by operation of the cab rank rule as it was partially operated by members of Faculty. By ruling dated 10 March 2011, the Dean of Faculty advised members that the cab rank rule will not be enforced in respect of civil legally aided cases instructed after 1 April 2011 and that the acceptance of instructions in these cases is a matter for the individual member.

The Dean’s memorandum is of considerable significance given the Faculty’s longstanding argument that the cab rank rule, such as it is, preserved access to justice and qualified Faculty to be treated somewhat differently from the solicitors’ branch of the profession. The Dean’s ruling is also important as it anticipates members of Faculty refusing to take instructions in civil legal aid cases.

If counsel and solicitor advocates do desert legally aided work, the implications for access to civil justice are profound, and may ultimately result in the Scottish Government being in breach of the Human Rights Convention for a failure to ensure that some of their citizens had access to legal assistance and effective access to the courts (see Airey v Ireland 32 Eur Ct HR Ser A (1979): (1979) 2 EHRR 305).

My own recent and unscientific straw poll of supreme court practitioners indicates that a significant number of advocates and solicitor advocates intend either to cease appearing for assisted persons altogether or are considering doing so in the near future. My own view on the matter is that this is the final straw in a weary personal campaign to obtain reasonable and timely payment from SLAB for Court of Session work under the 1989 Regulations. The proposed payment regime under the 2011 Regulations will make civil legal aid work hopelessly uneconomic.

Whilst we are in straitened times and public money must be spent carefully, these changes to the 1989 Regulations will impoverish an already threadbare legal aid provision and may result in only junior supreme court practitioners appearing for those who cannot afford private representation in our courts. This will result in a shameful two tier system of justice in the supreme courts, with the predictable consequences of inadequate representation and miscarriages of justice.