SLAB wins ruling in dispute over fee following change of plea
The Scottish Legal Aid Board has won a sheriff's ruling in a dispute over the meaning of the summary criminal legal aid regulations that affects a considerable number of cases.
Sheriff Alan Miller at Glasgow held that under the Fixed Payments Regulations 1999, where an accused was initially represented by the duty solicitor and then instructed another solicitor, and changed their plea to guilty before commencement of the trial, only half the fixed fee is payable to the solicitor instructed, including in cases where the changed plea applies to only part of the complaint.
Solicitors in this and other cases have argued that reg 4(5B) of the regulations was ambiguous and the restriction only applied where the plea was to the sole or all charges on the complaint. The auditor in the present case had upheld the solicitor's argument, and SLAB took a note of objections to the auditor's report. The regulations have since been amended in SLAB's favour to remove any doubt on the point.
Sheriff Miller said the issue was a question 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". What was essential, he continued, was to consider the disputed text in context of the terms of the regulations as a whole, and the wider statutory context.
Reading reg 4(5B) along with the relative schedules, 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". It was a feature of the scheme that the fee received might bear little relation to the work involved in an individual case, and arguments based on broad notions of fairness or reasonableness were not particularly helpful. The argument supporting the contrary conclusion would produce an anomalous situation.