Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993

Made: 3rd December 1993

Laid before Parliament: 10th December 1993

Coming into force: 1st January 1994

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 40 of the Sheriff Courts (Scotland) Act 1907[^f00001]and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation and commencement

1

• (1) This Act of Sederunt may be cited as the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993 and shall come into force on 1st January 1994.

• (2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Fees for solicitors

2

• (1) Subject to sub-paragraph (2), Schedule 1 to this Act of Sederunt shall apply to work done and expenses or outlays incurred on or after the date on which this Act of Sederunt comes into force.

• (2) Schedule 1 to this Act of Sederunt shall not apply to fees for work done, expenses or outlays incurred or to the taxation of accounts for which the Secretary of State may make regulations under and by virtue of section 14A of the Legal Aid (Scotland) Act 1967[^f00002] or section 33 of the Legal Aid (Scotland) Act 1986[^f00003].

Revocation and saving

3

• (1) The Acts of Sederunt specified in Schedule 2 to this Act of Sederunt are hereby revoked.

• (2) Notwithstanding the revocation in sub-paragraph (1), the provisions of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1989[^f00004]shall continue to have effect in respect of work done and expenses or outlays incurred before the coming into force of this Act of Sederunt.

SCHEDULE 1 — GENERAL REGULATIONS

1

The Table of Fees in this Schedule shall regulate the taxation of accounts between party and party; and shall be subject to the aftermentioned powers of the court to increase or modify such fees.

2

The pursuer’s solicitor’s account shall be taxed by reference to the sum decerned for unless the court otherwise directs.

3

Where an action has been brought under summary cause procedure, only expenses under Chapter IV of the Table of Fees shall be allowed unless the court otherwise directs.

4

Fees for work done under the Social Work (Scotland) Act 1968[^f00005]and summary applications shall be chargeable under Chapter III of the Table of Fees.

5

The court shall have the following discretionary powers in relation to the Table of Fees:–

• (a) In any case the court may direct that expenses shall be subject to modification.

• (b) The court may, on a motion made not later than seven days after the date of any interlocutor disposing of expenses, pronounce a further interlocutor regarding those expenses allowing a percentage increase in the fees authorised by the Table of Fees to cover the responsibility undertaken by the solicitor in the conduct of the cause. Where such an increase is allowed a similar increase may, if the court so orders, be chargeable by each solicitor in the cause against his own client. In fixing the amount of the percentage increase the following factors shall be taken into account:–

• (i) the complexity of the cause and the number, difficulty or novelty of the questions raised;

• (ii) the skill, time and labour, and specialised knowledge required, of the solicitor;

• (iii) the number and importance of any documents prepared or perused;

• (iv) the place and circumstances of the cause or in which the work of the solicitor in preparation for, and conduct of, the cause has been carried out;

• (v) the importance of the cause or the subject-matter of it to the client;

• (vi) the amount or value of money or property involved in the cause;

• (vii) the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing.

• (c) Where a party or his solicitor abandons, fails to attend or is not prepared to proceed with any diet of proof, debate, appeal or meeting ordered by the court, the court shall have power to decern against that party for payment of such expenses as it considers reasonable.

6

The expenses to be charged against an opposite party shall be limited to proper expenses of process without any allowance (beyond that specified in the Table of Fees) for preliminary investigations, subject to this proviso that precognitions, plans, analyses, reports, and the like (so far as relevant and necessary for proof of the matters in the Record between the parties), although taken or made before the bringing of an action or the preparation of defences, or before proof is allowed, and although the case may not proceed to trial or proof, may be allowed.

7

Except as otherwise provided in the Table of Fees, a solicitor may charge an account either on the basis of the inclusive fees of Chapters I and II or on the basis of the detailed fees of Chapter III of the Table of Fees, but he may not charge partly on one basis and partly on the other.

8

In order that the expense of litigation may be kept within proper and reasonable limits only such expenses shall be allowed in the taxation of accounts as are reasonable for conducting it in a proper manner. It shall be competent to the auditor to disallow all charges for papers, parts of papers or particular procedure or agency which he shall judge irregular or unnecessary.

9

Notwithstanding that a party shall be found entitled to expenses generally yet if on the taxation of the account it appears that there is any particular part of the cause in which such party has proved unsuccessful or that any part of the expenses has been occasioned through his own fault he shall not be allowed the expense of such part of the proceedings.

10

When a remit is made by the court regarding matters in the Record between the parties to an accountant, engineer, or other reporter the solicitors shall not, without special agreement, be personally respons ible to the reporter for his remuneration, the parties alone being liable therefor.

11

In all cases, the solicitor’s outlays reasonably incurred in the furtherance of the cause shall be allowed. Those outlays shall include a charge in respect of posts and sundries of 12 per cent of the taxed amount of fees.

12

In the taxation of accounts where counsel is employed–

• (a) counsel’s fees and the fees for instruction of counsel in Chapter II and Chapter III of the Table of Fees are to be allowed only where the court has sanctioned the employment of counsel; and

• (b) except on cause shown, fees to counsel and solicitor for only two consultations in the course of the cause are to be allowed.

13

Where work done by a solicitor constitutes a supply of services in respect of which value added tax is chargeable by him, there may be added to the amount of fees an amount equal to the amount of value added tax chargeable.

14

In Chapter IV of the Table of Fees–

• (a) necessary outlays, including–

• (i) in relation to Part II only, a charge in respect of post and sundries of 12 per cent of the fees allowed, and

• (ii) fees for witnesses calculated as provided by Act of Sederunt, are allowed in addition to the fees allowed under this Chapter;

• (b) in Parts I and II, sheriff officers' fees and the costs of advertising are allowable as outlays;

• (c) in Parts I and II, in respect of paragraph 3 (attendance at court), no fee is allowable for attendance at a continuation of the first calling, unless specially authorised by the court;

• (d) in Part II, in respect of paragraph 7 (precognitions), in a case where a skilled witness prepares his own precognition or report, half of the drawing fee is allowable to the solicitor for revising and adjusting it;

• (e) in Part II, in respect of paragraph 15, no fees shall be allowed in respect of accounts of expenses when the hearing on the claim for expenses takes place immediately on the sheriff or sheriff principal announcing his decision;

• (f) all fees chargeable under this Chapter in respect of the actions mentioned in the left-hand column of the following table shall, unless the sheriff, on a motion in that behalf, otherwise directs, be reduced by the amount of the percentage specified opposite those actions in the right-hand column of the following table:–

Actions	Percentage reduction
* value in relation to any action in which a counterclaim has been lodged, is the total of the sums craved in the writ and the sum claimed in the counterclaim.	* value in relation to any action in which a counterclaim has been lodged, is the total of the sums craved in the writ and the sum claimed in the counterclaim.
1 of a value[^f01000]from £50 to £250	25%
2 of a value[^f01000] of less than £50	50%
3 for recovery of possession of heritable property, if not defended	50%

• (g) in Part I, in respect of paragraph 1 (instruction fees), in relation to actions for reparation there are allowable such additional fees for precognitions and reports as are necessary to permit the framing of the writ and necessary outlays in connection therewith; and

• (h) in Part II, the fee allowable in respect of paragraph 14 (supplementary note of defence) is a fixed fee allowable only when a supplementary note of defence is ordered by the court.

TABLE OF FEES

CHAPTER I

PART I–UNDEFENDED ACTIONS — (other than actions of divorce or separation and aliment (affidavit procedure))

1

Actions (other than those specified in paragraph 2 of this Chapter) in which decree is granted without proof—

• (a) Inclusive fee to cover all work from taking instructions up to and including obtaining extract decree

2

Actions of separation and aliment, adherence and aliment and custody and aliment where proof (other than by way of affidavit evidence) takes place—

• (a) Inclusive fee to cover all work from taking instructions up to and including obtaining extract decree

3

Petition for appointment or discharge of a curator bonis

PART II — UNDEFENDED ACTIONS OF DIVORCE AND OF SEPARATION AND ALIMENT

1

In any undefended action of divorce or separation and aliment where–

• (a) the facts sets out in section 1(2)(b) (unreasonable behaviour) of the Divorce (Scotland) Act 1976^f00006 are relied on;

• (b) there is no crave relating to any ancillary matters; and

• (c) the pursuer seeks to prove those facts by means of affidavits, the pursuer’s solicitor may, in respect of the work specified in column 1 of Table A, charge the inclusive fee specified in respect of that work in column 2 of that Table.

Column 1	Column 2
Work done	Inclusive fee
	£
1 All wwork to and including the period of notice	245.80
2 All work from the period of notice to and including swearing affidavits	174.70
3 All work from swearing affidavits to and including sending extracts decree	53.70
4 All work to and including sending extract decree	474.20
Add process fee	of 10%

2

In any undefended action of divorce or separation and aliment where–

• (a) the facts set out in sections 1(2)(a) (adultery), 1(2)(c) (desertion), 1(2)(d) (two years' non-cohabitation and consent) and 1(2)(e) (five years' non-cohabitation) of the 1976 Act are relied on;

• (b) there is no crave relating to any ancillary matters; and

• (c) the pursuer seeks to prove those facts by means of affidavits, the pursuer’s solicitor may, in respect of work specified in column 1 of Table B, charge the inclusive fee specified in respect of that work in column 2 of that Table.

Column 1	Column 2
Work done	Inclusive fee
	£
1 All work to and including the period of notice	202.10
2 All work from the period of notice to and including swearing affidavits	97.30
3 All work from swearing affidavits to and including sending extract decree	53.70
4 All work to and including sending extract decree	353.10
Add process fee	of 10%

3

If–

• (a) the pursuer’s solicitor charges an inclusive fee under either paragraph 1 or paragraph 2 of this Part; and

• (b) the action to which the charge relates includes a crave relating to an ancillary matter,

in addition to that fee he may charge, in respect of the work specified in column 1 of Table C, the inclusive fee specified in respect of that work in column 2 of that Table.

Column 1	Column 2
Work done	Inclusive fee
	£
1 All work to and including the period of notice	97.30
2 All work from the period of notice to and including swearing affidavits	57.00
3 All work under items 1 and 2	154.30
Add process fee	of 10%

4

If the pursuer’s solicitor elects to charge an inclusive fee under this Part he shall endorse a minute to that effect on the initial writ before extract of the decree is ordered; and when the option is so exercised decree for expenses shall be granted against the defender for said sum together with outlays up to £85 inclusive of VAT without the necessity for taxation. If outlays in excess of £85 are claimed, an account of such outlays shall be remitted to the auditor of court for taxation and the sum allowed for outlays shall be the amount of the account as taxed.

CHAPTER II

PART I — DEFENDED ACTIONS COMMENCED ON OR BEFORE 31ST DECEMBER 1993

1

Instruction fee—

• (a) To cover all work (except as hereinafter otherwise specially provided for in this Chapter) to the lodging of defences including copyings

2

Adjustment fee—To cover all work (except as hereinafter otherwise specially provided for in this Chapter) in connection with the adjustment of the Record including (when appropriate) closing thereof, making up and lodging Closed Record and copyings—

• (a) Agent for any party

3

Affidavit fee—To framing affidavits, per sheet

4

• (a) Debate fee—To include preparation for and conduct of any hearing or debate other than on evidence, enquiring for cause at avizandum and noting interlocutor–

• (i) When debate does not exceed 1 hour

5

Precognitions–Taking and drawing–per sheet

6

Custody reports obtained under order of court–

• (a) Fee for all work incidental thereto

7

Commissions to take evidence–

• (a) On Interrogatories–

• (i) Fee to solicitor applying for commission to include drawing, intimating and lodging motion, drawing and lodging interrogatories, instructing commissioner and all incidental work (except as otherwise specially provided for in this Chapter) but excluding attendance at execution of commission

8

Specification of documents–

• (a) Fee to cover drawing, intimating and lodging specification and relative motion and attendance at court debating specification

9

Amendment of Record–

• (a) fee to cover drawing, intimating and lodging minute of amendment and relative motion and relative attendances at court–

• (i) Where answers lodged

10

Motions and minutes–

• (a) Fee to cover drawing, intimating and lodg` ing any written motion or minute, including a reponing note, and relative attendances at court (except as otherwise provided for in this Chapter)

• (i) Where opposed

11

Procedure preliminary to proof–

• (a) Fee to cover fixing diet of proof, citation of witnesses, and generally preparing for trial or proof and if necessary instructing shorthand writer–

• (i) If action settled or abandoned not later than 14 days before the diet of proof

12

Conduct of proof or trial–

• (a) Fee to cover conduct of proof or trial and debate on evidence if taken at close of proof–per quarter hour

13

Debate on evidence–

• (a) Where debate on evidence not taken at conclusion of proof, preparing for debate

14

Appeals–

• (a) To sheriff principal–

• (i) Fee to cover instructions, marking of appeal or noting that appeal marked, noting diet of hearing thereof and preparation for hearing

15

Settlements

• (a) Judicial tender–

• (i) Fee for preparation and lodging or for consideration of minute of tender

16

Final procedure–

• (a) Fee to cover settling with witnesses, enquiring for cause at avizandum, noting final interlocutor

17

Copying fees–

18

Process fee–

19

Fee for instruction of counsel–

• (a) Fee for instructing counsel to revise record

1

In each case to cover all consultations, revisal of papers and all incidental work.

2

Fee to counsel to be allowed as outlay.

CHAPTER II

PART 2 — DEFENDED ORDINARY CAUSES AND FAMILY ACTIONS COMMENCED ON OR AFTER 1ST JANUARY 1994

1

Instruction fee–

• (a) To cover all work (except as otherwise specially provided for in this Chapter) to the lodging of defences including copyings

2

Precognitions–Taking and drawing–per sheet

3

Productions–

• (a) For lodging productions–each inventory

4

Adjustment fee—To cover all work (except as otherwise specially provided for in this Chapter) in connection with the adjustment of the Record including making up and lodging certified copy Record–

• (a) Agent for any party

5

Affidavits–To framing affidavits, per sheet

6

Options Hearing–To include preparation for and conduct of Options Hearing (or First Hearing in defended family actions) and noting interlocutor–

• (a) Where hearing does not exceed one half hour

7

Additional Procedure–for all work subsequent to Options Hearing including preparation for and attendance at procedural hearing–

8

Debate (other than on evidence)–

• (a) Where counsel not employed

• (i) To include preparation for and all work in connection with any hearing or debate other than on evidence

9

Interim Interdict Hearings–

• (a) Preparation for each hearing–each party

10

Reports obtained under order of court–

• (a) Fee for all work incidental thereto

11

Commissions to take evidence–

• (a) On Interrogatories–

• (i) Fee to solicitor applying for commission to include drawing, intimating and lodging motion, drawing and lodging interrogatories, instructing commissioner and all incidental work (except as otherwise specially provided for in this Chapter) but excluding attendance at execution of commission

12

Specification of documents–

• (a) Fee to cover drawing, intimating and lodging specification and relative motion

• (i) Where motion unopposed

13

Amendment of Record–

• (a)

• (i) Fee to cover drawing, intimating and lodging minute of amendment and relative motion

14

Motions & minutes–

• (a) Fee to cover drawing, intimating and lodging any written motion or minute, including a reponing note, and relative attendances at court (except as otherwise specially provided for in this Chapter)–

• (i) Where opposed

15

Hearing Limitation–

16

Procedure preliminary to proof–

• (a) Fee to cover all work preparing for proof (except as otherwise specially provided for in this Chapter)

• (i) If action settled or abandoned not later than 14 days before the diet of proof

17

Conduct of proof–

• (a) Conduct of proof and debate on evidence if taken at close of proof–per quarter hour

18

Debate on evidence

• (a) Where debate on evidence not taken at conclusion of proof, preparing for debate

19

Appeals–

• (a) To sheriff principal–

• (i) Fee to cover instructions, marking of appeal or noting that appeal marked, noting diet of hearing thereof and preparation for hearing

20

Settlements

• (a) Judicial tender–

• (i) Fee for preparation and lodging or for consideration of each minute of tender

21

Final procedure–

• (a) Fee to cover settling with witnesses, enquiring for cause at avizandum and noting final interlocutor

22

Copying–

23

Process fee–

24

Instruction of counsel

• (a) Fee for instructing counsel to revise pleadings

CHAPTER III — CHARGES FOR TIME, DRAWING OF PAPERS, CORRESPONDENCE ETC

1

Attendance at court conducting trial proof or formal debate or hearing–per quarter hour

2

Time occupied in the performance of all other work including attendances with client and others and attendances at court in all circumstances, except as otherwise specially provided–

• (a) Solicitor–per quarter hour

3

Drawing all necessary papers (other than affidavits) (the sheets throughout this Chapter to consist of 250 words or numbers)–per sheet

4

Framing affidavits–per sheet

5

Revising papers where revisal ordered–for each five sheets

6

Copying all necessary papers by any means–

• (i) First copy–per sheet

7

Certifying or signing a document

8

Perusing any document–per quarter hour

9

Lodging in process–

10

Borrowing process–

11

Extracts–

12

Correspondence, intimations, etc.–

• (a) Formal letters and intimations

13

Citations–

14

Instructions to officers–

• (a) Instructing officer to serve, execute or intimate various kinds of writs or diligence including the examination of executions

15

Personal diligence–

• (a) Recording execution of charge

16

Sales–

• (a) Obtaining warrant to sell

CHAPTER IV — SUMMARY CAUSES

PART I–UNDEFENDED ACTIONS

1

To include taking instructions, framing summons and statement of claim, obtaining warrant for service, instructing service as necessary by sheriff officer (where appropriate), attendance endorsing minute for and obtaining decree in absence and extract decree and including posts and sundries

2

Service–

• (a) citation by post wheresoever after the first citation for each party

3

Attendance at court

PART II–DEFENDED ACTIONS

1

Instructions fee, to include taking instructions (including instructions for a counterclaim), framing summons and statement of claim, obtaining warrant for service, enquiring for notice of intention to defend, attendance at first calling, noting defence.

2

Service–

• (a) Citation by post within United Kingdom, Isle of Man, Channel Islands, or the Republic of Ireland–for each party

3

Attendance at court–

4

Preparing for proof, to include all work in connection with proof not otherwise provided for

5

Fee to cover preparing for adjourned diet and all incidental work if diet for more than six days–for each adjourned diet

6

• (a) Drawing and lodging inventory of productions, lodging the productions specified therein and cons idering opponent’s productions (to be charged only once in each process)

7

Precognitions–

• (a) Drawing precognitions, including instructions, attendances with witnesses and all relative meetings and correspondence–per witness

8

Motions and minutes–

9

Fee to cover considering opponent’s written motion or minute (excluding minute of motion to recall decree) and relative attendance at court–

• (a) Where motion or minute opposed

10

Conduct of proof–

• (a) Fee to cover conduct of proof or trial and debate on evidence taken at close of proof–per half hour

11

Settlements–

• (a) Judicial tender, fee for consideration of, preparing and lodging minute of tender

12

Specification of documents–

• (a) Fee to cover drawing, intimating and lodging specification of documents and relative motion and attendance at court

13

Commissions to take evidence–

• (a) Fee to cover drawing, lodging and intimating motion and attendance at court–

• (i) Where opposed

14

Supplementary note of defence (when ordered)

15

Appeals–

• (a) fee to cover instructions, marking of appeal or noting that appeal marked, noting of diet of hearing thereof and preparation for hearing

16

Final procedure–

• (a) Fee to cover settling with witnesses, enquiring for cause at avizandum, noting final interlocutor

CHAPTER V — MERCANTILE SEQUESTRATION

Charge according to Chapter III.

CHAPTER VI — EXECUTRY BUSINESS–INTESTATE MOVEABLE SUCCESSION

1

Taking instructions to present petition for decree-dative, drawing petition and making necessary copies, lodging and directing publication, attendance at court, moving for decree-dative, extracting decree where necessary, and all matters incidental to petition–inclusive fee

2

Preliminary investigation and confirmation of executors–

3

Bonds of caution–

• (a) Taking out bond of caution, getting it signed and lodged with clerk of court, and procuring attestation of cautioner’s sufficiency

4

Restriction of caution–

SCHEDULE 2 — REVOCATIONS

Column 1	Column 2	Column 3
Acts of Sederunt Revoked	References	Extent of revocation
Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1989	S.I. 1989/434	The whole Act of Sederunt
Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment) 1990	S.I. 1990/716	The whole Act of Sederunt
Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment) 1991	S.I. 1991/848	The whole Act of Sederunt
Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment) 1992	S.I. 1992/748	The whole Act of Sederunt
Act of Sederunt (Solicitor and Client Accounts in the Sheriff Court) 1992	S.I. 1992/1434	Paragraph 4
Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment) 1993	S.I. 1993/898	The whole Act of Sederunt

Signed

J.A.D. Hope — Lord President I.P.D. — 3rd December 1993

Explanatory note

(This note is not part of the Act of Sederunt)

This Act of Sederunt:–

• (1) replaces the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1989 but does not alter the fees in that Act of Sederunt which were last amended by the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment) 1993 except–

• (a) for the fees in paragraph 1(a) and (b) of Chapter 1 of the Table of Fees (certain undefended actions) which are increased from £74.80 and £61.90 to £100 and £80 respectively to avoid unnecessary taxations and to bring these fees more into line with the Court of Session equivalent fee (the inclusive fee does not represent a higher fee than a solicitor could charge by making a detailed charge); and

• (b) for the new provision mentioned in paragraph 3(b) below;

• (2) makes changes to the General Regulations formerly in the 1989 Act of Sederunt and now in this Act of Sederunt, namely,

• (a) adding a new factor (factor (vii)) which may be taken into account in fixing an increased fee under regulation 5(b);

• (b) removing an anomaly in regulation 5(c) so as to give the sheriff a general power to find a party who does not proceed, liable in expenses to any other party who has incurred expense in preparation;

• (c) allowing for two consultations with counsel instead of one in regulation 12; and

• (d) making other alterations of a minor nature;

• (3) provides in Chapter II of the Table of Fees–

• (a) in Part I for fees for causes commenced on or before 31st December 1993, being the current fees in the 1989 Act of Sederunt as amended by S.I. 1990/716, 1991/848, 1992/748 and 1993/898; and

• (b) in Part 2 for fees in respect of defended ordinary causes commenced on or after 1st January 1994.

Part 2 of Chapter II is required because of the new procedures introduced by the Ordinary Cause Rules 1993 in the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 [S.I. 1993/1956]. Under the new rules more work is required to be done by a solicitor at the instruction stage, and the principal solicitor for a party will normally require to attend the Options Hearing which is a new interim hearing to determine the future progress and course of a cause. The fees in Part 2 have been adjusted to reflect the new procedures and have in all cases been rounded to multiples of 50p.

Footnotes

[^f00001]: 1907 (c. 51); section 40 was amended by section 1(3) of the Secretaries of State Act 1926 (c. 18), the Schedule to the Administration of Justice (Scotland) Act 1933 (c. 41) and paragraph 7 of Schedule 1 to, and Schedule 2 to the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c. 12).

[^f00002]: 1967 (c. 43); section 14A was inserted by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983, section 3. The 1967 Act was repealed by the Legal Aid (Scotland) Act 1986 (c. 47), Schedule 5, but continues to apply in respect of legal aid granted prior to the 1986 Act coming into force, by virtue of paragraph 3 of Schedule 4 to the 1986 Act.

[^f00003]: 1986 (c. 47); section 33 was amended by the Legal Aid Act 1988 (c. 34), Schedule 4, paragraph 5.

[^f00004]: S.I. 1989/434, amended by S.I. 1990/716, 1991/848, 1992/748, 1992/1434 and 1993/898.

[^f00005]: 1968 C.49.

[^f00006]: 1976 c. 39.