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Report by the Research Working Group on the Legal Services Market in Scotland

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  1. Rule 3(1) of the Solicitors (Scotland) (Restriction on Practice) Practice Rules 2001.
  2. European Commission report on Competition in Professional Services (available at http://europa.eu.int/comm/competition/liberal_professions/final_communication_en.pdf).
  3. Based on aggregate fee income of almost £990 million earned by solicitors and advocates in private practice in Scotland in 2004 (6,859 solicitors and 470 advocates).
  4. Paterson I, Fink M, Ogus A (2003) Economic impact of regulation in the field of the liberal professions in different member states: regulation of professional services. European Commission, DG Competition
  5. Report on Competition in Professional Services, COM(2004) 83 final, published 9 February 2004, available at http://europa.eu.int/comm/competition/liberal_professions/final_communication_en.pdf.
  6. Competition in Professions, published 7 March 2001, available at http://www.oft.gov.uk/NR/rdonlyres/B08439C8-C5F6-4946-8AFF-71C050D34F46/0/oft328.pdf .
  7. Report of the Review of the Regulatory Framework for Legal Services in England and Wales, published on 15 December 2004 and available at http://www.legal-services-review.org.uk/content/report/index.htm .
  8. Available on the Scottish Executive website at http://www.scotland.gov.uk/consultations .
  9. Conveyancing and executry practitioners working in an employed capacity may provide conveyancing and executry services, but practitioners registered since 2003 may not offer such services direct to the public.
  10. Schedule 5 to the Scotland Act 1998, Head C3
  11. within the meaning of Part II of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990.
  12. Under section 6 of the Solicitors (Scotland) Act 1980.
  13. Under section 1(2) of the Solicitors (Scotland) Act 1980.
  14. The Law Reform (Miscellaneous Provisions) (Scotland) Acts of 1985 and 1990 and the Solicitors (Scotland) Act 1988
  15. under section 33 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990.
  16. under section 34(3A) of the Solicitors (Scotland) Act 1980.
  17. under section 25A of the Solicitors (Scotland) Act 1980.
  18. the European Communities (Lawyer's Practice) (Scotland) Regulations 2000 ( SI 2000 No 121).
  19. The Solicitors (Scotland) Act 1980 (Foreign Lawyers and Multi-national Practices) Regulations 2004, SI 2004 No 383.
  20. under section 33 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990.
  21. under sections 16-23 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990.
  22. by the Public Appointments and Public Bodies etc (Scotland) Act 2003.
  23. By virtue of section 144(2)(b) of the Criminal Procedure (Scotland) Act 1995.
  24. Under section 25A of the Solicitors (Scotland) Act 1980.
  25. under section 34(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
  26. Schedule 4 to the Solicitors (Scotland) Act 1980.
  27. Schedule 5, paragraph 10 of the Immigration and Asylum Act 1999.
  28. Under section 1 of the Solicitors (Scotland) Act 1980.
  29. "Reforming complaints handling, Building consumer confidence" Analysis of written consultation responses (available at http://www.scotland.gov.uk/Resource/Doc/77843/0018721.pdf )
  30. Report of the Review of the Regulatory Framework for Legal Services in England and Wales, published on 15 December 2004 and available at http://www.legal-services-review.org.uk/content/report/index.htm .
  31. Section 32(1) of the Solicitors (Scotland) Act 1980.
  32. Conveyancing and executry services may also be provided by conveyancing and executry practitioners in Scotland, though their numbers are small.
  33. Review of the Regulatory Framework for Legal Services in England and Wales March 2004, at para.18 (available at http://www.legal-services-review.org.uk/content/consult/review.htm ).
  34. Paterson AA, Bates St JN, Poustie MR. The Legal System in Scotland: Cases and Materials. Edinburgh 1999.
  35. A Foundation document proposed by the Law Society of Scotland on the future development of professional legal education and training in Scotland, 2004.
  36. Hamilton J, Martin P. Law Student 2002: a profile of law students in Scotland.
  37. Data from ETLLD statisticians.
  38. Anderson S, Murray L, Maharg P. Minority and social diversity in legal education in Scotland. Scottish Executive 2003.
  39. Hamilton J, Martin P. Law Student 2003: a profile of law students in Scotland.
  40. Admission as Solicitor (Scotland) Regulations 1991 and 2001, made under section 5 of the Solicitors (Scotland) Act 1980.
  41. in terms of the Admission as Solicitor (Scotland) Regulations 2001.
  42. The number of solicitors whose names were retained on the Roll (by paying only the annual retaining fee) as at 31 October for the practice years 2000 - 2004 was 1,135, 1,194, 1,334, 1,356 and 1,480 respectively.
  43. Women in the Legal Profession in Scotland - a study by the Law Society of Scotland and the Equal Opportunities Commission Scotland (available at http://www.lawscot.org.uk/Diversity/PDFs/Women_LegalProfession_full%20report.pdf )
  44. Duff E et al. Entry into the legal professions: The law student cohort study Year 6. Law Society 2000
  45. Boon A, Duff E, Shiner M (2001) Career paths and choices in a highly differentiated profession: the position of newly qualified lawyers. The Modern Law Review 64(4): 563-593.
  46. Rule 3(1) of the Solicitors (Scotland) (Restriction on Practice) Practice Rules 2001.
  47. Rule 4 of the Solicitors (Scotland) Practice Rules 1991.
  48. See page 14
  49. Statement for the Federal Trade Commission's workshop on "Possible Anticompetitive Efforts to Restrict Competition on the Internet Auto Panel", Professor Fiona Scott Morton, Yale School of Management.
  50. A postal ballot of members of the Law Society of England and Wales was held following adoption of a resolution in favour of re-instating the ban at the Society's AGM on 15 July 2004. There was a 17% response rate for 120,000 ballots issued; 73% of those solicitors who did respond were in favour of the resolution deploring the Council's decision to sanction referral fees. The President of the English Law Society observed however that when the Council made or changed rules, it had to make decisions on the basis of the public interest and for that reason the Council could not be bound on regulatory issues by any ballot of members.
  51. The Solicitors (Scotland) Professional Indemnity Insurance Rules 1995, made under section 44 of the Solicitors (Scotland) Act 1980.
  52. rule 4.3.8 of the Guide to the Professional Conduct of Advocates.
  53. Set out in a ruling by the former Dean of Faculty, ACM Johnston QC.
  54. The reports and Research Findings summaries published by the Scottish Executive Central Research Unit were :
    Hanlon, G. and Jackson, J. (2000) Solicitor Advocates in Scotland: The Impact on Clients (Report and Legal Studies Research Findings No. 33)
    Headrick, D. (2000) Solicitor Advocates in Scotland: A Statistical Analysis (Report and Legal Studies Research Findings No. 32)
    Kerner, K. (2000) Solicitor Advocates in Scotland: The Impact on the Legal Profession (Legal Studies Research Findings No. 34, based on an unpublished report to the Scottish Executive)
    Platts, A. (2000) Solicitor Advocates in Scotland: A Research Overview (Report and Legal Studies Research Findings No. 35)
    (They are available at http://www.scotland.gov.uk/publications/search.aspx?key=solicitor%20advocate )
  55. The Solicitors (Supreme Courts) Practice Rules 2003, which impose certain duties on solicitors to advise their clients of the respective merits of representation by a solicitor advocate or by counsel, do not remove the underlying potential conflict of interest in which a solicitor advocate may be placed in giving such advice.
  56. Solicitors (Scotland) Order of Precedence, Instructions and Representation Rules 1992, rule 5.
  57. Solicitors (Scotland) Rules of Conduct for Solicitor Advocates 2002, rule 1(1).
  58. While solicitor advocates are entitled to accept instructions on the basis that they will not discuss the case with a potential witness (Rules of Conduct for Solicitor Advocates 2002, rule 7(6)), there is no obligation on them to do so.
  59. paragraphs 4.3.1 to 4.3.3
  60. Batchelor v. Pattison & Mackersy (1876) 3R 914, 918 per Lord President Inglis.
  61. Medcalf v. Mardel [2003] 1 AC 120, paragraphs 51-52 per Lord Hobhouse of Woodborough.
  62. By virtue of a resolution of Faculty of 19 May 1976.
  63. the Solicitors (Scotland)(Advertising and Promotion) Practice Rules 1995, made under section 34 of the Solicitors (Scotland) Act 1980.
  64. This literature is reviewed in J H Love and F H Stephen, 'Advertising, Price and Quality in Self-regulating Professions: A Survey', International Journal of the Economics of Business, vol. 3 No. 2, 1996.
  65. For example J R Schroeter, S L Smith and S R Cox, 'Advertising and competition in routine legal service markets: an empirical investigation', Journal of Industrial Economics, vol 36, 1987.
  66. J H Love, F H Stephen, D D Gillanders and A A Paterson, 'Spatial aspects of the deregulation of conveyancing markets', Regional Studies, vol. 26, 1992 (for England & Wales) and F H Stephen , 'Advertising, consumer search costs and prices in a professional service market', Applied Economics, vol 26, 1994. ( for Scotland).
  67. This argument is due to J A Rizzo and R J Zeckhauser, 'Advertising and the price, quantity and quality of primary care physician services', Journal of Human Resources, vol 27, 1992.
  68. A A Paterson and F H Stephen, The Market for Conveyancing in Scotland: Solicitors' Responses to Competition through Advertising and Fee Quotations, Scottish Office CRU Paper, December 1990, Edinburgh.
  69. Stephen (1994), supra.
  70. available at http://www.oft.gov.uk/nr/rdonlyres/b08439c8-c5f6-4946-8aff-71c050d34f46/0/oft328.pdf
  71. See Guide to the Professional Conduct of Advocates which provides that "An advocate may act in a professional capacity only on the instructions of a Scottish solicitor…" (paragraph 4.2.1).
  72. Architects Registration Board of the United Kingdom
    Army Legal Services
    Association of Average Adjusters
    Association of Consultation Architects
    Association of Taxation Technicians
    Insolvency Practitioners Association
    Institute of Chartered Accountants of Scotland
    Institute of Mechanical Engineers
    Royal Institute of Chartered Surveyors
    Scottish Public Services Ombudsman
    The Architects and Surveyors Institute
    The Association of Authorised Public Accountants
    The Chartered Association of Certified Accountants
    The Chartered Institute of Management Accountants
    The Chartered Institute of Taxation
    The Chartered Insurance Institute
    The Faculty of Actuaries
    The Institute of Chartered Accountants in England and Wales
    The Institute of Chartered Accountants in Ireland
    The Institute of Chartered Secretaries and Administrators
    The Institution of Civil Engineers
    The Institution of Electrical Engineers
    The Office of the Banking Ombudsman
    The Officer of Arms in Ordinary (The Heralds and Pursuivants of the Lyon Court)
    The Royal Incorporation of Architects in Scotland
    The Royal Town Planning Institute
  73. Batchelor v. Pattison & Mackersy (1876) 3R 914, 918 per Lord President Inglis.
  74. Clementi considered that removal of the Bar Council's restriction against partnerships between barristers would make it easier to achieve greater choice of business structures in England and Wales (op cit, pages 129 to 132).
  75. The Guide to the Professional Conduct of Advocates, paragraph 1.2.4.
  76. Section 31(1) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990.
  77. in accordance with section 40 of the 1990 Act.
  78. Faculty Services provides clerking services through 11 'stables' as well as billing and typing services. These are paid for by the subscribers as a percentage of fees collected. Thus the support costs provided by Faculty Services are spread across all subscribing members of the Faculty.
  79. Economies of scope are likely to be less for an advocate than for a sole practitioner solicitor.
  80. This presumes that the practitioner's choice will be based on economic considerations and not socio-cultural factors.
  81. It might take time for the supply of legal services to adjust its organisational forms due to the past decisions of suppliers. However over time as new suppliers were faced with greater flexibility in choice of organisational form adjustment would take place.
  82. rule 4 of the Solicitors (Scotland) Practice Rules 1991.
  83. Speech by Lord Falconer of Thoroton to Legal Services Reform Conference on 21 March 2005 (available at http://www.dca.gov.uk/speeches/2005/lc210305.htm )
  84. B. Arrunada, 'Managing Competition in Professional Services and the Burden of Inertia', in Claus-Dieter Ehlermann and Isabela Atanasiu, eds., European Competition Law Annual 2004: The Relationship between Competition Law and (Liberal) Professions, Hart Publishing, Oxford and Portland, Oregon, forthcoming.
  85. Arrunada, supra.
  86. Research carried out in the 1990s on licensed conveyancers in England & Wales found that in geographical markets investigated a majority of licensed conveyancers were employed by solicitors as opposed to being in independent practice. The explanation offered was that the high risk associated with setting up a single service firm in a market which was subject to the cyclical behaviour of the housing market made independent practice less attractive than employment (Frank H Stephen and James H. Love, 'Deregulation of Legal Services Markets in the UK: Evidence from Conveyancing', Hume Papers on Public Polzcy, Vol. 4.4, 1996,53 - 66.
  87. This issue is somewhat more complex when more than one individual is providing the litigation service, as is often the situation in complex cases.
  88. It is assumed here that an advocate who joins an LDP would no longer have access to the clerking services of Faculty Services Ltd.
  89. The literature begins with two papers by Eugene Farna and Michael Jensen published in Journal of Law and Economics, 26, 1983: 'Separation of Ownership and Control' and 'Agency Problems and Residual Claims'. It should be recognised that the implications of this literature may conflict somewhat with the literature on investment in reputation.
  90. Guide to the Professional Conduct of Advocates, paragraph 1.2.4
  91. Solicitors (Scotland)(Multi-Disciplinary Practices) Practice Rules 1991, rule 4
  92. Solicitors (Scotland)(Incorporated Practices) Practice Rules 2001, rule 3.
  93. in section 27 of the Solicitors (Scotland) Act 1980.
  94. Solicitors (Scotland)(Multi-Disciplinary Practices) Practice Rules 1991, rule 4.
  95. section 34 of the Solicitors (Scotland) Act 1980, subsection 3A.
  96. in accordance with section 64A of the Solicitors (Scotland) Act 1980.
  97. RCS, rule 49.17; Ordinary Cause Rules ( OCR), rule 33.16
  98. Adoption (Scotland) Act 1978, s. 58; Rules of the Court of Session ( RCS), rule 67.4.
  99. Children (Scotland) Act 1995, section 87(4).
  100. See Maxwell, Court of Session Practice, pp. 312-316; Macphail, Sheriff Court Practice, Vol. 1, paras 13.27-13.34. The power of the Court of Session in petition procedure is provided for in the Court of Session Act 1988, section 25(2). In actions of division and sale a remit to a reporter is required by the Rules of Court: see RCS, rule 45.1.
  101. Adoption (Scotland) Act 1978, s. 58; RCS, rule 67.4.
  102. Children (Scotland) Act 1995, section 87(4)(b).
  103. European Commission report on Competition in Professional Services (paragraph 31) (available at http://europa.eu.int/comm/competition/liberal_professions/final_communication_en.pdf ).
  104. Op cit. paragraphs 37 to 41.
  105. For the OFT's view, see paragraphs 19, 94 and 95 below. Professor Frank Stephen observed that the EC and OFT reports were following a long line of such bodies in the UK and abroad in making this assertion, but believed that it was contestable on both theoretical grounds and in terms of the limited evidence available whether that was a valid claim. Shinnick and Stephen (2000) argued that the usual claims regarding recommended fees flew in the face of the difficulty of enforcing 'cartel prices' in a cartel with a large number of members, where demand fluctuated and where prices were not transparent. The conceptual argument led them to conclude that enforcing a national recommended scale fee for conveyancing would be difficult but that collusion between suppliers in a local market might be more likely. Data for Scotland in 1984 and Ireland in the 1990s provided evidence of considerable discounting on recommended scale fees in both jurisdictions. The evidence for Ireland was the strongest. Conveyancing fees varied from locality to locality frequently below the recommended fee. However, the available data could not differentiate between the local fees being competitively or collusively determined.
  106. COMP/38.549 - PO / Barême d'honoraires de l'Ordre des Architectes belges, available on the Commission's website at http://europa.eu.int/comm/competition/antitrust/cases/index/by_nr_77.html#i38_549 . The decision issued on 24 June 2004 and was not appealed. The OFT noted that the decision provided a useful example of the application of Article 81 EC in the context of fee recommendations by a professional body.
  107. E.g. Tods Murray v. Arakin Ltd, Lady Smith.
  108. E.g. R v. Secretary of State for the Home Department ex parte Leech (No. 2) [1994] QB 198, 210A-D; R v. Lord Chancellor ex parte Witham [1998] QB 575.
  109. Article 6; Golder v. United Kingdom (1975) 1 EHRR 524, 536. In certain types of case this may require the State to make legal aid available to the litigant: e.g.Airey v. United Kingdom (1979) 2 EHRR 305.
  110. The average cost of running a solicitor's practice in 2004 worked out at a rate of £115 per hour of solicitors' chargeable time. That rate was based on notional salaries of £55,000 pa for profit sharing partners aged 35 or over and £48,800 for profit sharing partners aged under 35. Salaried partners were included at their actual salaries.
  111. The methodology used in the Cost of Time Survey is discussed below at paragraphs 10.19 and 10.20.
  112. Page 50, Benchmarks and Cost of Time, The 2004 Survey of Legal Practices in Scotland, Law Society of Scotland, 2005
  113. available on the Society's website in the section on Commonly Used Rules : http://www.lawscot.org.uk/members/common_rules/ClientComm_Rules2005_Guidance.pdf .
  114. Stronachs Corporate v Mountwest 166 Limited (A1677/03 in Aberdeen Sheriff Court, on the Scottish Courts website).
  115. Rule 2(1) of the Act of Sederunt (Solicitor and Client Accounts in the Sheriff Court) 1992 (1992 SI No. 1434)
  116. Loretto School v Macandrew & Jenkins 1992 SLT 615)
  117. pro bono publico literally, for the public good, ie free of charge.
  118. See further below.
  119. Paragraph 4(1).
  120. Paragraph 5.
  121. Batchelor v. Pattison & Mackersy (1876) 3R 914, 918 ; see also Drummond v. Law Society of Scotland 1980 SC 175. Advocates fees were however specifically included in the Late Payment of Commercial Debts (Scotland) Regulations 2002 ( SSI 2002/335) which implemented the terms of an EC Directive on combating late payment in commercial transactions (Directive 2000/35/ EC of 29 June 2000). The Regulations applied the terms of the Late Payment of Commercial Debts (Interest) Act 1998 to fees for professional services payable to members of the Faculty of Advocates in the same way as to a contract for the supply of services.
  122. Batchelor v. Pattison & Mackersy, loc. cit.
  123. Solicitors (Scotland) Act 1980, section 61A.
  124. Scheme for Payment of Counsel's Fees.
  125. Act of Sederunt (Solicitor and Client Accounts in the Sheriff Court) 1992 ( SI 1992 No 1434) and Rule 42.7 in the Court of Session Rules 1994 ( SI 1994 No. 1443).
  126. Pro bono publico for the public good, i.e. free of charge.
  127. Gloag, The Law of Contract in Scotland, 2d edn, p. 578.
  128. The CCBE is the acronym in French for the confederation of the bars and Law Societies of Europe. It is recognised by the European Union and is consulted by the institutions of the Union as representing the legal profession in Europe.
  129. Quantum Claims Compensation Specialists Ltd v. Powell 1998 SLT 228.
  130. X Insurance Co v. A & B 1936 SC 225.
  131. Solicitors (Scotland) Act 1980, section 61A (solicitors); Law Reform (Miscellaneous Provisions)(Scotland) Act 1990, section 36 (advocates); RCS, r. 42.17 (solicitors); Act of Sederunt (Fees of Advocates in Speculative Actions) SI 1992 No. 1897 (advocates).
  132. The Act of Sederunt (Fees of Solicitors in Speculative Actions) 1992 ( SI 1992 No 1599).
  133. Scots law does not recognise the doctrines of champerty and maintenance which apply in English law. A funder who directs and controls the conduct of the litigation and who has an interest in the outcome may render himself liable in expenses to the other side, as a dominus litis. The detailed rules in relation to this can be found in the standard works on civil procedure: e.g. I.D. Macphail, Sheriff Court Practice, 2nd edn, paragraphs 4.112-4.113.
  134. There is a third situation in which litigation is funded by an insurer, namely when an insurer has indemnified the insured in respect of some loss and pursues a third party who is legally liable for that loss in the name of the insured under the doctrine of subrogation. Although this is a common situation, it is probably not correct to treat this as a method of funding litigation, since although the nominal pursuer is the insured, it is the insurer who has the principal interest in the outcome of the litigation.
  135. Solicitors (Scotland) Act 1980, section 61A(1).
  136. Rules of the Court of Session ( RCS), r. 42.7.
  137. RCS, r. 42.7.
  138. Ordinary Cause Rules 1993 r. 32.1 to 32.4 (Parliament House Book Section D44/80).
  139. The following account discusses party and party expenses in the Court of Session, Sheriff Court and statutory tribunals. It does not deal with expenses in the House of Lords, for which see Forms of Bills of Costs applicable to Judicial Taxations in the House of Lords in Civil Appeals 1997, set out in the Parliament House Book, Volume 1, pp. B530 ff. The best short modern accounts of the law of expenses are I.D. Macphail, Sheriff Court Practice, 2nd edn, Chapter 19; and Lord Carloway, "Expenses", in Macfadyen (ed), Court of Session Practice.
  140. Shepherd v. Elliot (1896) 23R 695, 696 per Lord President Robertson; see also Howitt v. Alexander & Sons 1948 SC 154, 157 per Lord President Cooper.
  141. Legal Aid (Scotland) Act 1986, section 18; RCS, r. 42.6.
  142. Legal Aid (Scotland) Act 1986, section 19.
  143. Similarly: (A) one of several defenders sued jointly and severally may tender to the pursuer and to the other defenders that they contribute in certain proportions ( Houston v. British Road Services 1967 SLT 329); and (B) one of several defenders sued jointly and severally may offer to the other defenders that he will admit liability to the pursuer if the other defenders will contribute to that defender in certain proportions ( Williamson v. McPherson 1951 SC 438).
  144. I.D. Macphail, Sheriff Court Practice, 2nd edn, paragraph 19.13.
  145. RCS, r. 42.5; AS (Fees of Solicitors in the Sheriff Court) 1993, General Regulations, r. 9.
  146. Independent Pension Trustee v. LAW Construction Co Ltd 1997 GWD 31-1493.
  147. RCS, r. 42.1; OCR, r. 32.1.
  148. RCS, r. 42.10(1); 19, AS (Fees of Solicitors in the Sheriff Court) 1993, General Regulations, r. 8.
  149. McNair's Exrs v. Wrights Insulation Co Ltd 2003 SLT 1311, para. 9.
  150. Malpas v. Fife Council 1999 SLT 499, 501E per Lord Bonomy.
  151. Part VIII of Chapter 3 of the Court of Session Table provided that the Auditor should allow a solicitor advocate such fee for each item of work done in that capacity as he would allow to an advocate for an equivalent item of work.
  152. RCS, r. 42.10(3). The Table of Fees is annexed to RCS, r. 42.16.
  153. RCS, r. 42.10(5).
  154. RCS, r. 42.10(4).
  155. Signet Group plc v. C & J Clark Retail Properties Ltd 1995 GWD 27-1454; McDonald v. Salmond 1999 SC 396, 400G.
  156. Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1993, General Regulations, r. 7.
  157. Ibid., r. 3; see also r. 14.
  158. Ibid., r. 12.
  159. RCS, r. 42.14; AS (Fees of Solicitors in the Sheriff Court) 1993, General Regulations, r. 5(b).
  160. RCS, r. 42.14(2)
  161. RCS, r. 42.14(4).
  162. Employment Tribunals (Constitution etc) Regulations 2004, Sched 1, paras 38-41.
  163. Criminal Procedure (Scotland) Act 1995, s. 32(6).
  164. Representation of the People Act 1983, s. 172(4).
  165. Renton & Brown, Criminal Procedure, 6th edn., para 23-163.
  166. Criminal Procedure (Scotland) Act 1995, s. 183(9); see Renton & Brown, paras. 23-164, 165.
  167. Table of Fees of Solicitors in the Court of Session : Act of Sederunt (Rules of the Court of Session) 1994 ( SI 1994 No 1443). Table of Fees of Solicitors in the Sheriff Court : Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993 ( SI 1993 No 3080).
  168. Case C-35/99 ECJ Judgment of 19 February 2002
  169. Solicitors' outlays : Table of Fees payable in the Court of Session : Court of Session etc Fees Order 1997 ( SI 1997 No 688). Solicitors' outlays : Table of Fees payable in the Sheriff Court : Sheriff Court Fees Order 1997 ( SI 1997 No 687).
  170. section 4(2) of the Act.
  171. section 4(3) of the Act.
  172. section 6(1)(a)
  173. section 6(1)(b)
  174. section 13(2)
  175. section 21(4)
  176. section 29(11)
  177. section 4(2)(a)
  178. section 32
  179. paragraph 15, schedule 1 to the Act
  180. in advice and assistance a solicitor is only paid for "work actually, necessarily and reasonably done" and in criminal
  181. legal aid "for work actually and reasonably done… due regard being had to economy"
  182. Maclaren on Expenses, page 511
  183. Hood -v- Gordon, per Lord McLaren at page 676
  184. Nicholas Dingley -v- Chief Constable of Strathclyde Police 2003SCLR Notes 160
  185. Civil Legal Aid (Scotland)(Fees) Regulations 1989, as amended by the Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003 [S.S.I. 2003 No 178], repealed and re-enacted to include children's legal aid in SSI 2004 No 281.
  186. A curator appointed by the court to act for a person under legal disability (eg who has no guardian or by reason of youth or mental disorder) whose interests have to be safeguarded in legal proceedings.
  187. Schedule 3, Part I, Advice and Assistance (Scotland) Regulations 1996
  188. Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999, as amended.
  189. Criminal Legal Aid (Scotland) (Fees) Amendment Regulations 2005
  190. This table is largely based on the table produced in the Strategic Review Document produced by the Scottish Executive in 2004 on the delivery of legal aid, advice and information. Counsel's fees in solemn cases have been amended here to reflect the current position.
  191. Regulation 19 Advice and Assistance (Scotland) Regulations 1996, Regulation 12 Civil Legal Aid (Scotland) (Fees)
    Regulations 1989 and Regulation 11 Criminal Legal Aid (Scotland) (Fees) Regulations 1989
  192. The Civil Legal Aid (Scotland) (Fees) Amendment Regulations [S.S.I. 2003 No.178] repealed and re-enacted to include children's legal aid in S.S.I. 2004 No.281.
  193. In terms of section 12 of the 1986 Act.
  194. Regulation 4A(4)
  195. Section 4(3) of the 1986 Act.
  196. The decision as to who should pay the expenses of a litigation is one for the court, if the parties have not agreed the matter as part of a settlement. The decision as to how much these expenses should amount to, is for the auditor of court.
  197. In addition, statutory tribunals and arbiters can remit accounts to auditors.
  198. Assessments can also be done by independent law accountants, either from a solicitor alone or on a joint remit from the solicitor and the client.
  199. In Edinburgh the two sheriff court auditors are solicitors, their counterpart in Glasgow is a law accountant. In all other sheriff courts the auditor is a sheriff clerk or depute.
  200. Sheriff clerk auditors felt unable to participate in interviews due to an ongoing consultation by the Scottish Court Service. The absence of this group from the research represented a significant gap in terms of views and experiences, and details of the mode of operation of auditors. However, interviews were carried out with independent auditors, the Auditor of the Court of Session, a representative from the Society of Sheriff Court Auditors, Sheriff Principals, solicitors, law accountants, the Scottish Legal Aid Board, the Law Society of Scotland and the Scottish Courts Service. Former sheriff clerk auditors were also interviewed. The Society of Sheriff Court Auditors was also invited to comment on the draft research report, and its response is at annex H.
  201. The Scottish Legal Aid Board cited an issue which had been ruled on by sheriff court auditors in three different courts - each coming to a different conclusion.
  202. However, a number of respondents commented adversely on the extent of discretion exercised by auditors in the setting of counsel's fees in the field of legally aided litigation. This was particularly felt to be true where counsel were appearing in the Court of Session.
  203. Despite the fact that a sheriff clerk is a public official qua his or her sheriff clerk work.
  204. There appeared to be very little in the way of official information on the volume and breakdown of work done by auditors. That said, several respondents indicated that they made formal returns as to the number of judicial taxations they undertook. It is unclear what happens to this information - it is not published in the Civil Judicial Statistics.
  205. See Lord President Clyde in Davidson & Syme v. Booth 1972 SLT 122 at p.127 "After all he is an officer of the court….protecting the interests of the public."
  206. Almost all of our respondents who had been or were auditors indicated that they would accept "out of town" assessments or joint remits. One who did not was the only respondent to state that he did not accept that some solicitors approached "out of town" auditors in search of more generous decisions. As against this, other auditors or former auditors indicated that they thought they had "lost" private work because their assessments were seen as insufficiently generous. It should remembered, however, that the researchers were not able to interview more than a few serving auditors.
  207. Available at www.dca.gov.uk/consult/qcfuture
  208. Paterson I, Fink M, Ogus A (2003) Economic impact of regulation in the field of the liberal professions in different member states: regulation of professional services. European Commission, DG Competition
  209. In Canada there were variations across federal states.
  210. "multi-disciplinary practice" means a body corporate or a partnership
    (a) having as one of its directors or, as the case may be, partners, a solicitor or an incorporated practice; and
    (b) which offers services, including professional services such as are provided by individual solicitors, to the public; and
    (c) where that solicitor or incorporated practice carries out, or supervises the carrying out of, any such professional services as may lawfully be carried out only by a solicitor;
  211. Norwood and Paterson describe this working definition as one which 'is comprehensive enough to include many models of multidisciplinary practice' (Norwood and Paterson (2002) at 342
  212. However, the Enron case has increased the voice of opposition to MDPs in the USA. The American Bar Association has recognised growing opposition to MDPs. 'In a post-Enron environment, in relation to the role of an accountant acting specifically as an auditor, there is a very obvious and fundamental conflict of duty, compared with the duty of a solicitor' (Law Society of Scotland 2004).
  213. LCD 2002
  214. In addition to the models of 'Legal Practice Plus' and 'Linked Partnerships'
  215. The OFT favours a mixed ownership model as most likely to maximise benefits to users of legal services.
  216. http://www.eurolegal.org/webresources/multilaw.htm
  217. Cooperation with notaries where no separate profession has been ignored for the purposes of this analysis
  218. amended with respect to MDPs in 2002 by the Legal Profession Amendment (National Competition Policy Review) Act 2002
  219. Position as at 2000

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