Letters: September 2020

I recently had the career satisfaction to be instructed in a case before the UK Supreme Court, ABC v Principal Reporter [2020] UKSC 26 (18 June 2020). 

The case involved the rights of relevant persons to attend at children’s panel proceedings. Eight QCs were instructed in two appeals along with 10 junior counsel. My firm acted for one of the parents of the children in one case. Given that there was no conflict of interests, we jointly instructed our junior counsel with the agent for the other parent. 

The case was heard over two days. It involved a great deal of work for all the advocates concerned, and the solicitors instructed.

I had expected 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 to find that this is not possible. 

So far as counsel are concerned, the Legal Aid (Scotland (Fees) Regulations 1989, reg 10(2) states: “Counsel’s fees for any work in relation to proceedings in the Supreme Court... 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.” 

Supreme Court Practice Direction 13 indicates the level of remuneration which counsel would expect to receive in a non-legal aid case, and in terms of reg 10(2) SLAB would look to make payment of 90% of those rates depending on the specific factors of the case. In this case, I understand, fees were sought by seniors in the region of £35,000 each and for juniors around £19,000 each, from SLAB.

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

By reg 5(3) of the 1989 Regulations, “A solicitor's fees in relation to proceedings in the Supreme Court on appeal from the Court of Session... shall be calculated in accordance with Schedule 3”. Schedule 3 is the legal aid table of detailed fees. 

It would appear therefore that for solicitors there is no provision for an application to the UK 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 Appeal Court. 

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

Yvonne McKenna, McKennas Law Practice, Glenrothes 

Patricia Thom, co-convener of the Law Society of Scotland's Legal Aid Committee, responds: “Yvonne McKenna highlights shortcomings that exist in the current system in recognising the complexity and sheer amount of work that is involved for solicitors in preparing such cases.

“We have worked successfully with SLAB to address some issues to help ensure timely payments for practitioners during the COVID-19 period. However there are still short and long-term issues that need to be addressed so that we have a justice system that is accessible to anyone who needs it – and that means ensuring that solicitors can afford to take on legal aid cases now and in the future.”