Scottish Government

Annex H: Letter from the Society of Sheriff Court Auditors of 2 November 2005

The Society of Sheriff Court Auditors
Sheriff Court House
6 West Bell Street
Dundee
DD1 9AD

Dear Mr West

Auditor of Court Research Paper

Thank you for your letter of 7 October requesting comments from The Society of Sheriff Court Auditors on the research paper (on the functions of auditors of court) prepared for the Research Working Group on the legal services market in Scotland.

On behalf of the Council of the Society of Sheriff Court Auditors, I would make the following comments on your research paper. For ease of reference I do so using the numbering as set out in your paper.

1. For clarification (Footnote 1) we would point out that auditors only tax judicial accounts when parties cannot agree. The majority of accounts are agreed without taxation.

2. The issue of "whether the work was done adequately" is not a matter for the auditor. In judicial audits the court has determined liability. In non-judicial situations, if a party feels that is an issue, he can refuse to pay, force the agent to sue for payment and, in defending, raise issues of competence, adequacy and non-performance. The court can then decide before remitting to the auditor to decide on the level of fees at taxation.

3. Your paper alludes to concerns expressed by some stakeholders about the role of the auditor, and the way in which duties in relation to taxation are carried out. The Society disagrees that the system is "insufficiently transparent, accountable, impartial or consistent".

4. The Society view is that the process for appointment of auditors is transparent. A Sheriff Clerk auditor is appointed by the Sheriff Principal upon his being appointed to the role of Sheriff Clerk. Your paper states that the Sheriffs Principal takes it very much on trust that Sheriff Clerks will be competent as auditors, but it is the Society's view that the Sheriffs Principals' experience of this system of appointment has served them well for a very long time. This is borne out by the absence of any complaints about auditors and how they perform their duties. The Society is unaware of any auditor having his commission revoked.

We would suggest that the words "if ever" in line 16 of this paragraph should be deleted to reflect the correct position that auditing has been mentioned in job specifications for the position of Sheriff Clerk.

5. We note that many auditors are widely regarded as highly skilled and competent by those using the system, but also that a few respondents questioned the skill and experience of some Sheriff Clerk auditors in relation to some areas of taxation. While, initially, some auditors may be inexperienced in some areas, they receive assistance from the many highly skilled auditors who are part of the network that is The Society of Sheriff Court Auditors.

6. We note the concerns of a few respondents about the lack of consistency among auditors. Consistency should not be confused with getting the same decision at every taxation. At taxation, an auditor will consider each case on its own merits. He will hear submissions from each party and come to a decision on disputed matters on the basis of arguments advanced. Where a party is dissatisfied with a decision made, objections can be taken to a sheriff who will rule on the matter. Where this has been done in the past, such decisions are intimated to auditors by the Society. The paper does not inform whether the Legal Aid Board tested their concerns in this way.

The Society would agree that the timing of the withdrawal of the Table of Fees for General Business was unhelpful, but note this has been dealt with by the introduction of the Law Society of Scotland's Guidance on the Solicitors (Scotland) (Client Communication) Practice Rules 2005, from 1 August 2005.

7. The Society considers that this paragraph is unfairly critical of the training given to Sheriff Clerk auditors. New auditors are trained by senior auditors of court and receive written guidance from the Society on judicial audits, fee assessment and case law. In addition there is a very strong network of auditors who readily share their knowledge and experience and provide support and advice. It is unfair to describe this training as patchy as it is readily available.

The Society is unclear as to what the few respondents mean by formal training. However, the Society could design a formal training course if this is what is meant.

It is quite wrong to state that auditors do not discuss extra-judicial taxations and assessments with each other. This happens regularly across the country.

8. The former Law Society of Scotland Table of Fees for General Business made it clear (Chapter 2 - Para 1c) that "an assessment by the auditor should never be represented as a taxation or as having any official status". A reference to this provision was included on Certificates of Assessments issued by auditors, and the Society cannot understand why there should have been any confusion among solicitors about this.

9. No comment.

10. The Auditor of Court is an independent officer of court, who has an equal duty to the person liable to pay legal fees and the person entitled to those fees, when carrying out a taxation, or an assessment of fees. He has taken an oath to that effect. This duty is to ensure that the fee set by him is fair and reasonable to both sides, having regard to any appropriate Table of Fees. It follows, therefore, that it is the Society's view that it is quite wrong for any auditor of court to refer to solicitors submitting taxations/assessments to him, as his clients.

11. The Society is of the view that auditors can only work within the system that presently exists, and discretion is a large part of this. There are adequate mechanisms in place to address the concerns of those interviewees about lack of clarity/variability of auditor decisions. An auditor, when requested, will give oral or written reasons, and objections can be taken against his decision.

On the question of solicitors choosing to send assessments to non-local auditors, it is the Society's understanding that solicitors should only use their local auditor, where practicable.

12. In our view this paragraph, and the examples cited in it, are irrelevant in relations to skills, guidance and lack of training given to auditors. Counsel, unlike solicitors, do not have prescribed fees for non-criminal legal aid work, or for any judicial work. There is no prescribed method of reducing auditors' fees to reflect success or lack of success at the taxation diet. Accordingly, auditors require to rule on the basis of the merits of individual cases. If it is thought there are problems in these areas, the Society feel that prescribed rules/rates should be introduced.

13. On the points contained in this paragraph, The Society does not consider there is a conflict of interest or that there need be any potential tension and our comments in Response 10 above are relevant to these issues.

Yours sincerely

Mr Roland McMillan
Secretary