Discipline Tribunal consults on expenses review

A review of its practice in awarding expenses is being undertaken by the Scottish Solicitors' Discipline Tribunal, and it has just opened a consultation on options for change.

The tribunal still awards expenses calculated by reference to the Law Society of Scotland's former table of fees, which was abolished in 2005, and at a unit rate (£14) which has remained unchanged since 2008. However expenses are awarded against the unsuccessful party on the relatively generous agent and client, client paying basis, as opposed to the party and party basis normally used in court. The tribunal's practice was held to be within its discretion by the Court of Session in the Ahmed-Sheikh case in 2019.

In its consultation paper the tribunal sets out the varying practices of disciplinary bodies across different professions. It states that having considered its current practice, and that of other courts and tribunals, it proposes to continue to apply its general rule of awarding expenses against the unsuccessful party, while preserving its discretion to make an award on a different basis or to modify the award in appropriate cases. 

It further proposes that it continues to award expenses in most cases on the agent and client, client paying scale, while exercising its discretion to use a different basis in appropriate cases. The Tribunal considers that this scale "is usually the fairest method to allow the regulator, in cases where it is successful, to recover the cost of prosecution from the respondent solicitor, rather than that cost being borne by the profession at large".

The Tribunal seeks views on whether expenses should be calculated and taxed with reference to the last published Law Society of Scotland table of fees. As the current tables in the rules covering court expenses relate to party and party expenses, they are "not easily transferable to tribunal proceedings".

It continues: "An alternative might be for the tribunal to create its own table of fees which updates the last published Law Society’s table of fees and can be kept under review by the tribunal at its annual general meetings. This could be made available on the tribunal’s website.

"The Tribunal proposes that the unit rate it applies is linked to that set in the Act of Sederunt (Taxation of Judicial Expenses) Rules 2019. This would mean that the unit rate for tribunal proceedings would currently increase from £14.00 to £16.40. It would increase whenever the unit rate for judicial expenses was updated, rather than being set by the tribunal."

Views are invited on any aspect of the consultation, including the questions:

• Should the usual scale for awarding expenses be the agent and client, client paying scale?
• Should units be allocated to charges by reference to the last published Society table of fees, or a table created by the tribunal, or some other relevant reference point?
• Should the unit rate be linked to that set in the court rules (presently £16.40) or set in some other way?

Click here to access the consultation. The deadline for responses is 14 May 2021.