“criminal legal aid” included a variety of forms of legal assistance including automatic criminal legal aid, the Duty Solicitor Scheme and appeals. The statutory provisions set out in Part 4 apply as regards the remuneration of solicitors and, where appropriate, counsel providing legal aid.
Competition issues
10.89 Since 1992 the fees that solicitors charged their own clients for litigation work had not been covered by Rules of Court. There were no restrictions on the fees that solicitors could charge their own clients for litigation, except for the general requirement in Article 6 of the Solicitors’ Code of Conduct that all fees had to be fair and reasonable in the circumstances.
164 Criminal Procedure (Scotland) Act 1995, s. 32(6). 165 Representation of the People Act 1983, s. 172(4).
166 Renton & Brown, Criminal Procedure, 6th edn., para 23-163.
10.90 The only fees that were governed by Rules of Court were fees that could be recovered from the other party following an award of expenses (judicial fees). Those fees were regulated by the Court in the public interest to ensure that there was proper control over what the unsuccessful party required to pay in expenses to the successful party.
10.91 Solicitors fees in party and party expenses were set by the Lord President of the Court of Session on the advice of his Advisory Committee on Court Fees, which was chaired by a Judge and included the Auditor of the Court of Session, solicitors representing firms who acted for pursuers, solicitors representing firms who acted for defenders such as insurance companies, and a member of the Faculty of Advocates. These fees were contained in Tables made by Act of Sederunt168. The Office of Fair Trading and the Scottish Consumer Council were concerned that the Lord President’s Advisory Committee did not include any consumer representation.
10.92 The Law Society of Scotland considered that tables of fees for party and party expenses did not distort competition, though the Office of Fair Trading took the view that the setting of solicitors’ fees by Courts or public authorities could have a negative impact on price competition if it served as a focal point for fee levels in other contexts. The extent to which this might be a problem would depend on the way in which the Court set fees. The Scottish Legal Aid Board saw the setting of fees by the Court as a useful means of regulating the costs which would be payable by an unsuccessful opponent. In the absence of any set fees, that opponent would have no benchmark against which he could assess the likely costs he might have to pay, at least insofar as they related to solicitors’ fees. Likewise, the successful party would have no basis for knowing the likely shortfall between his own solicitor’s bill, and the sums payable by the opponent, and thus the amount he would have to find from other sources. The Scottish Consumer Council agreed with the Board’s view on this issue.
10.93 The Faculty pointed out that it was necessary to distinguish between agent and client fees on the one hand (the fees which a client would pay his own solicitor) and party and party fees on the other (the legal expenses which a losing party might have to pay a winning party in a litigation). The Faculty believed that fairness dictated that a party to a litigation which was found liable for the expenses of another party should not be at the mercy of the level of fees which the latter’s solicitor might charge. Moreover, if the current approach to taxation of party and party expenses was to be abandoned, such a step could make it much more difficult for litigations to be settled, since the implications in expenses of a settlement could be much more difficult to predict. That could have an impact on the administration of justice.
10.94 The OFT recognised that where a losing party might have to pay the fees of the solicitor of the winning party (i.e. in party and party costs), it was in the public interest that fees be subject to taxation by the courts. In the OFT’s view, therefore, the issue was not whether there should be a taxation process, but what information should inform the taxation process in order to ensure that any damage to competition resulting from the process was kept to a minimum. In particular, the OFT was concerned that where a professional body was engaged in providing fee information to the courts for that purpose, the manner in which the
168 Table of Fees of Solicitors in the Court of Session : Act of Sederunt (Rules of the Court of Session) 1994 (SI 1994 No 1443). Table of Fees of Solicitors in the Sheriff Court : Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993 (SI 1993 No 3080).
information was collected and presented might give rise to competition concerns. In order to minimise this risk and to achieve compliance with competition law, it would be important to ensure that any information on price provided by a professional body was historical only, collated and aggregated by a third party and framed to show that it was not intended as a recommendation but as a description of historical prices.
10.95 Additionally, where fees were set by public authorities, such as for example judicial fees for taxation purposes, it would be important in the OFT’s view to ensure that a consultation process operated to ensure that the wider public interest and not just the interests of suppliers, was fully represented. With regard to the information on which the process relied, the OFT welcomed the fact that following withdrawal of the Law Society’s table of recommended fees with effect from 1 August 2005, reliance would in future be placed on the Law Society’s Cost of Time survey. The OFT remained concerned, however, that if the current consultation mechanism was retained (see paragraph 10.91), it did not appear likely to ensure that the wider public interest was represented. It would be important to ensure that any such arrangements met requirements set out in EC law. In the Arduino169 case, for example, the European Court of Justice considered the compatibility with EC competition rules of the participation by a legal professional body in a process where lawyers’ fees were set by public authorities.
10.96 The Law Society of Scotland regarded the process of taxation of judicial accounts potentially as a safeguard in the public interest. The only possible impact on price competition was to encourage volume referrers of personal injury work such as trade unions to seek referral arrangements where the solicitors would not charge the referrer or the individual client fees over and above those that could be recovered from the other side in the event of success. Such arrangements had been developed in the last few years, particularly by the trade unions.
10.97 The value of auditors of court in protecting the public was touched on in the research into the operation of taxation in Scotland, reported in part VI of this chapter. The research findings suggested that the training of auditors, the guidance available to them and the consistency of their decisions, including those in relation to who should pay for the cost of a taxation, were areas for potential concern.
10.98 The fees payable to the Court itself were set in statutory instruments made by the Scottish Executive170. They had increased very significantly in recent years to reflect a policy of recovering the cost of running the civil side of the Courts from the litigants.
169 Case C-35/99 ECJ Judgment of 19 February 2002
170 Solicitors’ outlays : Table of Fees payable in the Court of Session : Court of Session etc Fees Order 1997 (SI 1997 No 688). Solicitors’ outlays : Table of Fees payable in the Sheriff Court : Sheriff Court Fees Order 1997 (SI 1997 No 687).
PART V: FUNDING OF LEGAL AID CASES