Professional practice updates 2014

Professional practice updates April 2014

Advice and information - Appearance of counsel without an agent

Civil Justice Committee comments on the Sheriff Principal Taylor's Review of Expenses and Funding of Civil Litigation in Scotland

Advice and information - Appearance of counsel without an agent

Introduction

Under a ruling which came into force on 24 September 2013, the Dean of the Faculty of Advocates has provided that it is permissible for properly instructed counsel to appear at any hearing in civil proceedings without the attendance of an instructing agent

Following this ruling, the Scottish Legal Aid Board issued guidance on its approach to charges for solicitors appearing with counsel as instructing agents. The guidance provides that "In relation to entries in accounts in civil cases relating to attendances behind counsel at appearances on or after 24th September 2013, solicitors may expect to be asked to confirm why attendance behind counsel was required."

Advocates are instructed to appear by solicitors and until the recent Ruling, Advocates could not appear without the client's solicitor or a representative from the solicitor's firm being in attendance.

The Society has met with the Faculty of Advocates to discuss the relationship between counsel and solicitors in the light of the ruling. The intention, as it was explained by the Faculty, is for the ruling to provide solicitors with greater flexibility to determine how to run a case, and to address situations where the attendance of two professionals may not be necessary and may not be cost effective. The Faculty submit that it will be clear in most situations whether or not it is appropriate for counsel to appear without an agent. The intention is for this ruling to apply predominately in hearings dealing with distinct arguments on points of law, and procedural hearings. However, there is nothing to prevent the practice being applied to any kind of hearing.

There is currently no formal data to indicate whether, and if so, how many, solicitors are applying the new Ruling.  Likewise, there is no formal data from legal aid practitioners on the impact the Ruling has had on legal aid accounts.  The Society will continue to monitor the position and to request feedback from practitioners.    In the meantime, in the absence of evidence of how the Ruling is operating in practice, the purpose of this note is not to provide direct Guidance, but rather to inform by highlight concerns, and recommendations to solicitors who are operating under the Ruling.   A number of the considerations cannot be answered at this time, such as the judicial response to Advocates appearing without an instructing agent.  It is anticipated that over time, such issues may become clearer or that further direction might be provided from the Faculty or Court.

Issues for consideration

The potential for solicitors to agree with counsel that counsel may attend a meeting without an instructing agent raises a number of areas for consideration. Solicitors should consider on a case-by-case basis whether this is an appropriate choice, and in doing so may find it helpful to consider the following issues and questions. The solicitor should be aware of these issues, and discuss arrangements and potential scenarios with counsel and the client.

  • The management of the relationship between client, solicitor, and counsel
    • What are the client's views and how will these be taken into account when determining whether it is appropriate for both solicitor and Counsel to attend?
    • What is the relationship and ability of the client to communicate with counsel in the absence of the solicitor?
    • Will counsel explain procedure or process to a client in the absence of the instructing solicitor?
    • What is the obligation on counsel to report discussions with the client to the solicitor?
    • Who prepares a report of the court attendance and how is this communicated to the client?
    • What is the cost to the client if counsel prepares the court attendance report?
    • Under what circumstances will it be appropriate for counsel to consult with the client directly if the direction anticipated for the hearing changes and the solicitor is absent?
    • Under what circumstances will it be appropriate for counsel to exercise power to take a decision on concluding the case without the input of the instructing solicitor?
  • The relationship between solicitors and advocates
    • Solicitors and counsel will need to agree in what circumstances counsel might insist on attendance and how much notice is required if a solicitor's attendance is being insisted upon.
  • Cost
    • Solicitors should be clear as to the reasons why attendance is necessary, and consider how to justify their role in the proceedings and attendance at a hearing in situations where there may be pressure to minimise costs by not attending hearings with counsel.
    • Solicitors will need to consider how they will satisfy themselves as to how the hearing was conducted for the purposes of making payment to counsel.
    • If a hearing requires to be adjourned because the instructing solicitor is required or because Counsel insists on their attendance (notwithstanding previous agreement that attendance is not required) who will be liable for the payment of any expenses this might generate?
    • What is the anticipated response from judges and sheriff's on the proposed Ruling and how will they deal with possible delays if instructing solicitors are called upon during a hearing in order to advise or assist their client?
  • Complaints
    • If a complaint is made linked to the attendance or non-attendance of a solicitor at a hearing, a solicitor should expect to be able to demonstrate that all reasonable steps were taken to explain the decision to attend or not to attend, and the consequences of the different options to the client.
  • Legal Aid
    • Solicitors should monitor how practice develops over time in relation to SLAB's interpretation of the guidance in relation to justification of attendance.
    • It is recommended that a note from counsel be kept on file confirming that counsel agrees and requires the solicitor to be present at a particular hearing.

Feedback

If you have feedback or further queries about the Ruling the Society would like to hear from you.  Please contact MarinaSinclair-Chin@lawscot.org.uk in relation to civil legal aid matters and CoralRiddell@lawscot.org.uk or FionaJRobb@lawscot.org.uk for issues arising from the Ruling that fall outwith legal aid.

 

Civil Justice Committee comments on the Sheriff Principal Taylor's Review of Expenses and Funding of Civil Litigation in Scotland

The Society's Civil Justice Committee did not consider each of the recommendations made in the review but instead focused on general themes as follows;-

Qualified one way cost shifting - QOCS

The Review recommends the proposed introduction of a qualified one way costs shifting regime ("QOCS") to apply to all personal injury claims.  This would represent a significant departure from the traditional "expenses follows success" rule that currently exists.

A successful pursuer will still recover expenses from the defender but where a pursuer is unsuccessful he will not have to pay the defenders any expenses, except in certain limited circumstances.  The protection afforded by QOCS may be lost if the pursuer has acted fraudulently or has acted unreasonably in raising or conducting the action.

In addition, should a defender make an offer of a sum of money to the pursuer in the form of a judicial tender and the pursuer rejects the offer but is awarded less by the court, the benefit of QOCS will be reduced. The pursuer in such circumstances will still retain 25% of the damages awarded. At present, the pursuer may win the litigation but still have to pay some money by way of expenses to the defender.

Sheriff Principal Taylor has suggested that the introduction of QOCS "will remove the spectre of the pursuer being bankrupted by an adverse award of expenses".

QOCS has been in operation in England and Wales following the implementation of the Jackson Reforms.  However the pre-Jackson expenses regime in England and Wales was markedly different to Scotland. In England the issues were recoverability of success fees and After the Event insurance premiums. In Scotland these costs are not recoverable from defenders.

The Committee discussed the issues in relation to QOCS in great detail. In particular some members of the Committee identified that that there was no direct comparison with England and Wales where is could be argued that the introduction of QOCS could be seen as a quid pro quo in respect of referral fees. In Scotland  there is a ban on the payment of referral fees which comes from the Society's prohibition on sharing fees with non- solicitors.

The proposal to introduce QOWCS was welcomed by Pursuer's solicitors.

In contrast the view of Defender's solicitors is that where a defender in a personal injury action seeks to have his rights vindicated and succeeds in the defence of the action justice should dictate that he is awarded expenses and indeed is able to recover these.

As a result of the very divergent views within the Committee in relation to QOCS it is difficult for the Committee or indeed the Society to be either supportive or critical of this proposal.

Referral fees

The Committee welcomed Sheriff Principal Taylor's comments regarding the non-existence of a compensation culture in Scotland. In particular the Committee agreed that in Scotland there have been far fewer in-roads made by claims management companies.

The Review proposes that only regulated bodies should be entitled to charge a referral fee.

This is contrary to the current position in England and Wales where a ban on the payment of referral fees in personal injury cases was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

The Review also proposes that a "regulator" of claims management companies should be set up, whilst there should also be a prohibition on such companies cold calling prospective clients.

The Committee were unanimous in expressing some concern in relation to legitimising referral fees.

The Committee also suggested that the removal of the Rule which prohibits a solicitor sharing fees with a non-solicitor   (Rule D9.2) could have implications for the wider profession.

Cost of litigation

Though not specifically highlighted in the Review the Committee supported a restructuring of the Table of Fees. Currently there are two problems namely the disparity between recoverable expenses and costs and the lack of certainty for litigants.

The Committee went on to discuss obstacles to full recovery. These include the distinction between party/party fees and solicitor/client fees.

The Committee agreed that rates for Commercial work should be increased and more use should be made of additional fees.

The Review also recommended that the judiciary should become more involved in the management of the expenses of the court process. In particular it was recommended that a system of expenses management, based on budgeting, should be introduced as a pilot in courts with commercial procedures.

The Committee agreed with the proposal that judges should be involved in deciding the appropriate expenses which should be awarded but were concerned that this proposal would only be effective if the judiciary are provided with appropriate training. Concern was also expressed that, as in England and Wales, a great deal of judicial time might get spend on deciding expenses.

Damages based agreements

The Review recommends that these "no win-no fee" agreements, where fees are calculated as a percentage of the damages recovered, should become enforceable.

At present, only claims management companies are able to enforce these agreements in Scotland.

The maximum percentage to be deducted from damages in personal injury cases would be set on a sliding scale ranging from 2.5% to 20%.  In addition to the success fee, solicitors will also be able to retain the judicial expenses recovered from the defender.

The Committee agreed that in general the proposals in relation to Damage Based Agreements could be welcomed by both the Committee and the Society.

The Committee went on to express some reservations with the suggestion that there should be an obligation on the pursuer's agents to disclose the means of funding. Some of the Committee members thought that this would give a tactical advantage to defenders particularly in situations other than personal injury where there would be no possibility of QOCS.

There was also concern about a cap on additional fees at 100% and the setting of an additional fee in advance.  The Committee agreed that additional fees should be at the discretion of the court on cause shown.

Civil Justice Committee comments on the Sheriff Principal Taylor's Review of Expenses and Funding of Civil Litigation in Scotland.

03 April 2014