Dean waives cab rank rule in civil legal aid cases

The cab rank rule for advocates will not be enforced in respect of civil legally aided cases instructed after 1 April 2011. The acceptance of instructions in these cases will be a matter for the individual member of Faculty.

The Dean of Faculty, Richard Keen QC, gave this advice in a notice to members dated 10 March, as a result of the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2011, which came into force on 1 April.

The regulations remove the discretionary power of the Auditor of Court to increase fees in the relevant table to take account of complexity, difficulty or other particular circumstances, so as to provide reasonable remuneration for work undertaken.

Although counsel rarely sought taxation, the opportunity to do so ensured that the Scottish Legal Aid Board paid reasonable levels of fees to counsel in order to avoid the Auditor and have a level of reasonable rates established. This system was generally recognised, according to one solicitor advocate, as being a fair one and solicitors found they had little difficulty in securing suitable counsel to appear for legally aided persons in the courts.

In his notice the Dean states that as a result of the amendments, “it can no longer be assumed that the fee rates set out in the new Tables of Fees are implicitly reasonable. From 1 April 2011, members may take it that whether or not the fees set out in the Tables of Fees constitute reasonable remuneration for work instructed will be a matter for each individual member concerned. If any member considers that in any case in which he receives instructions the new Tables of Fees do not provide for a reasonable fee then, as a generality, no professional duty to accept instructions will arise”.

See also www.journalonline.co.uk/extras/1009574.aspx