Regulatory framework governing fees charged by legal professions
There is no regulation of the fees legal professionals charge their clients. There is, however, regulation of the fees that can be recovered by a party who is successful in litigation.
There is no regulation of fees for solicitors in Scotland. Fees will depend upon many different factors to do with the particular case in question.
There is no regulation of fees for advocates in Scotland. Fees will depend on many different factors to do with the particular case in question.
Fixed costs in civil proceedings
Fixed costs for litigants in civil proceedings
Fixed costs in Scotland depend on the type of proceeding and the court at which they are raised (commence). Fixed costs are payable at various stages of a proceeding:
- When lodging the papers that commence the proceedings in the court
- When lodging additional papers
- When fixing a court hearing
- For use of court time during a court hearing, based on a daily rate
- For lodging accounts for the taxation of expenses
- When an appeal is marked.
The fees for each action type are set out in Scottish Statutory Instruments, and are known as Fees Orders. In civil proceedings, the Sheriff Court Fees Order 2018, Sheriff Appeal Court Fees Order 2018 and The Court of Session Fees Order 2018 are of relevance. More information on the fees orders in Scotland can be found on the website of the Scottish Courts and Tribunals Service.
Family Law – Divorce/Dissolution of Civil Partnership
In Scotland, applications for divorce/dissolution of civil partnership can be raised in the Sheriff Court or Court of Session via:
A simplified procedure (this cannot be used where there are children of the marriage/partnership under the age of 16 years);
A non-simplified procedure.
The fee for lodging an application for simplified divorce/dissolution of civil partnership in the Sheriff Court is currently £123; in the Court of Session, the fee is currently £128. An additional cost will be charged if the sheriff officer is required to serve the divorce papers on the defender. In the Sheriff Court and Court of Session, the fee for this service is £13, plus a separate fee charged by the sheriff officer or messenger-at arms.
A non-simplified divorce/dissolution of civil partnership is commenced by way of an initial writ in the Sheriff Court. The fee for an initial writ in an action involving a divorce or the dissolution of a civil partnership is currently £153. In such actions, the court cannot arrange for the writ to be served on the defender. Therefore, the pursuer (applicant) will need to pay separate fees to serve papers to either a solicitor or a sheriff officer. There will also be additional fees to pay at various stages, depending on the progress of the case through the court (see above). At a minimum, if the case is undefended, there will be an additional fee to lodge affidavits, which is currently £68. In the Court of Session, the current fee to lodge an initial writ for divorce/dissolution of civil proceedings is £170, with an additonal fee to lodge affidavits, which is currently £73.
It is up to the pursuer (applicant) to decide whether to raise the action in the Sheriff Court or Court of Session. A lawyer should be able to advise on the most appropriate forum for any case.
Family Law – Custody of children and child maintenance
In family law cases, the amount of the fee in the Sheriff Court depends on whether the crave (or request) on who should have parental responsibilities and rights for the child or where the child should live or who should have contact with the child or in relation to financial support for a child is made in addition to a crave (or request) for divorce/dissolution of civil proceedings. Where there is also a crave (or request) for divorce/dissolution of civil proceedings, the fees charged for a non-simplified divorce, noted above, apply.
If there is no crave (or request) for divorce/dissolution, there will be an applicable fee for lodging an initial writ; this is currently £127. Additional fees will be payable at different stages, depending on the progress of the case through the court.
In the Court of Session, the applicable fee will be £170; again additional fees may be payable at different stages, depending on the progress of the case through the court (see above).
Commercial law – contract and responsibility
In commercial law cases, the amount of the fee depends on the order sought and the rules of the court where the pursuer (person who initiates a lawsuit) is raising the action.
For example, if the pursuer is able to raise the action in terms of the ‘simple procedure’ rules in the Sheriff Court, and is seeking payment of a sum under £5,000, the fee for lodging the summons is currently £19 for a sum of £200 or less and £102 for a sum over £200 and up to £5,000. There may be additional court fees incurred thereafter. For example, if a summons must be served on the defender by a sheriff officer, the applicable fee for arranging this service is currently £13 plus the fee charged by the sheriff officer. However, the sheriff clerk can arrange this only if the pursuer is an individual. Other parties must arrange for service by either a solicitor or sheriff officer, and a separate fee will be payable to them.
If the pursuer is able to raise the action in terms of the ‘summary cause’ rules and is, for example, claiming a sum between £3,000 and £5,000, the fee to lodge the summons is currently £102. Again additional fees may be incurred thereafter (see above). In such cases, the sheriff clerk cannot arrange for the summons to be served on the defender; thus the party will need to arrange for service either by a solicitor or sheriff officer. A separate fee will be then payable to them.
If the pursuer is able to raise the action in terms of the ‘ordinary cause’ rules: for example, if a sum over £5000 is sought or if chapter 40 of the rules (commercial actions) applies; the fee to lodge the writ is currently £127, and additional costs may be incurred thereafter (see above).
If the action is to be raised in the Court of Session, the initial fee is currently £307. However, additional fees may be incurred thereafter (see above).
Stage of the civil proceeding where fixed costs must be paid
The initial fee is payable at the time of commencing the action when lodging the document with the court. In the case of service by sheriff officer (i.e. in simple procedure actions where the claimant is an individual and does not have legal representation) and in simplified divorce/ dissolution of civil partnership applications) the £13 fee is payable when the service is requested. The sheriff officer’s service fee is payable on request by the sheriff clerk/clerk of session on receipt of the sheriff officer’s fee note. Other fees are payable: when additional papers are lodged, when fixing a court hearing, for use of court time during hearing (at a daily rate), for lodging accounts for taxation of expenses and when an appeal is marked.
Fixed costs in criminal proceedings
Fixed costs for litigants in criminal proceedings
None, an accused person is entitled to legal aid to defend criminal proceedings if she or he qualifies financially and, in summary procedure cases, it is considered to be in the interests of justice to make legal aid available.
Fixed costs in constitutional proceedings
Fixed costs for litigants in constitutional proceedings
Human rights issues can be raised as part of any civil proceedings. The applicable fee depends, therefore, on the type of action being raised and the type of order being requested.
- Simple procedure actions of £200 or less – currently £19
- Simple procedure actions of more than £200 up to £5000 – currently £102
- Summary cause actions from £3000 to £5000 – currently £102
- Ordinary cause actions over £5000 – currently £127
- Summary application actions – currently £127
- Court of Session actions – currently £307.
In all of these types of action, additional fees may be payable at various stages, depending on the progress of the case through the court (see above).
Stage of the constitutional proceeding where fixed costs must be paid
In constitutional proceedings, an initial fee is payable when: lodging the papers with the court to commence proceedings, when additional papers are lodged, when fixing a court hearing, for use of court time during a court hearing (at a daily rate), for lodging accounts for taxation of expenses and when an appeal is marked.
Prior information to be provided by legal representatives
Rights and obligations of the parties
Solicitors are obliged to give their clients information on the fees he or she will charge. It is prudent for a solicitor to provide information on the chances of success and the costs involved. The ‘Standards of Conduct for Scottish Solicitors’ require that solicitors communicate clearly and effectively with their clients.
Where can I find information on cost sources in Scotland?
There is information on court fees in the 'Taking Action' section on the website of the Scottish Courts and Tribunals Service
There is also a fee supplement in the Scottish Law Directory, which is published annually by Lexis/Nexis Butterworths.
In what languages can I obtain information on cost sources in Scotland?
All information is available in English.
The Scottish Courts and Tribunals Service also provides information about proceedings via the 'Other languages' option on its website.
It lists documents and leaflets that have been translated into Arabic, Cantonese, Gaelic, Mandarin, Polish, Punjabi, Russian and Urdu.
Where can I find information on mediation?
Since 2004, the Scottish Mediation Network (SMN) has provided a ‘map of mediation’ on its website. The information has been upgraded several times. The work is funded by the Scottish Government. The link (Scottish Mediation Network) appears in a number of leaflets and web links. The SMN office also receives telephone enquires and directs the public to the appropriate mediation services. The Scottish Mediation Network sets out mediator qualifications, to give parties more information when selecting a mediator.
Where can I find additional information on costs?Information on the Scottish Courts and Tribunals Service website in respect of court fees includes:
- Links to the fees orders
- A fee exemption form
- Fees for the most common actions in the Sheriff Court.
Where can I find information on the average length of time that different procedures take?
There is no information on the average length of time Civil court business takes. Even within particular types of procedures, each case is different and times to completion may vary. A solicitor experienced in the type of procedure may be able to give you an indication of average lengths of time.
Where can I find information on the average aggregate cost for a particular proceeding?
No information on average aggregate costs is available, as each defended case is different. A solicitor experienced in this type of case may be able to give you a range of costs. Information on the volume of civil business dealt with in the courts in Scotland is available on the Scottish Government website.
Value Added Tax
How is this information provided?
The published costs include VAT.
What are the applicable rates?
The rate, where applicable, is 20 percent. (See VAT Rates - GovUK)
Applicable financial thresholds in the area of civil justice
Financial eligibility in civil legal aid cases is calculated on the basis of disposable income level (which is all income less tax, national insurance, allowances for dependants and major outgoings such as housing and childcare costs) based on a tapered contribution regime (sliding scale) and disposable captial. As at March 2016, if the disposable income is less than £3,521, legal aid is available with no contribution from income. If disposable income falls between £3,522 and £26,239 legal aid is granted subject to payment of a contribution by the applicant. If disposable income exceeds the upper limit of £26,239, legal aid cannot be granted. If disposable capital is less than £7,853 legal aid is available without a contribution. If disposable capital falls between £7,853 and £13,017 legal aid is granted subject to payment of a contribution. If disposable captial exceeds £13,017 legal aid can only be made available if the Scottish Legal Aid Board (SLAB) is satisfied that the applicant cannot afford to proceed without legal aid.
The financial resources of a partner or spouse of an applicant for civil legal aid are treated as the applicant's unless the parties have a contrary interest in the case or are living separate and apart. The financial resources of a person owing a child applicant an obligation of aliment are treated as the child's unless it would be unjust and inequitable to do so.
In addition to the financial tests, applications for civil legal aid must also meet legal merits tests: the applicant must have probable cause and it must be reasonable in all the circumstances that legal aid is made available.
Applicable income threshold in the area of criminal justice for defendants
In solemn procedure cases, the test is whether the person or his or her dependants can pay the expenses of the case without undue hardship. There is no income threshold as such but SLAB will look at the person's net income and items of essential household expenditure when considering an application for legal aid. SLAB needs full information about the applicant's financial situation and that of any spouse or partner who is living with them, where that person receives an income. This will help in the consideration of whether dependants would suffer undue hardship if legal aid were not to be granted.
In summary procedure cases, where full legal aid is applied for after a plea of not guilty, the same test applies. Again there is no statutory income threshold and SLAB will take into account the person's net income and essential household outgoings when considering an application for legal aid. In some limited situations, the court (sheriff court or Justice of the Peace court) has the power under Section 23(1)(b) of the Legal Aid (Scotland) Act 1986 to grant criminal legal aid. This is where the accused person has not previously been sentenced to imprisonment or detention and has been convicted and the court is considering that person's first sentence of imprisonment or detention. In these cases the court will consider the person's income and household expenditure when considering the application.
SLAB does the calculations. In practice, they use a weekly equivalent of the current civil 33% disposable income limit of £11,540 (effective from April 2016). This makes a weekly figure of £222 the initial cut off point for eligibility on disposable income, after essential weekly outgoings and allowances for any dependants have been taken into account. If an applicant’s weekly disposable income exceeds £222, SLAB looks at the nature of the case to determine whether paying for her or his legal costs would cause the applicant undue hardship.
If legal aid is granted in these cases the person does not have to make a contribution towards the cost of the case.
In other summary criminal cases, where a client pleads guilty or where a case is continued without plea, a solicitor can admit a client to assistance by way of representation (ABWOR). In such cases, the disposable income limit is £245 per week. This includes income from all sources, excluding any ‘passported’ (where an individual falls into a certain category and so passes a means test automatically) or disregarded benefits, minus allowances for any dependants.
In these cases the person may be required to pay a contribution of between £7 and £135 towards the cost of the case, depending on the level of their disposable income.
Applicable income threshold in the area of criminal justice for victims
There is no full criminal legal aid available to victims in criminal cases. Solicitors may advise and assist on procedures, but legal aid does not cover any representation. In such cases, the disposable income limit is £245 per week. This includes income from all sources, excluding any ‘passported’ or disregarded benefits, minus allowances for any dependants.
However, representational legal aid is available to people who want to oppose a motion for a court order for recovery of their medical or other sensitive documents in criminal proceedings. In these cases there is no financial test or client contribution.
To pursue a claim arising from criminal injury where legal aid is needed, the income limits are as set out when a maximum disposable income limit of £26,239 is in place. However, certain such claims can be dealt with by the Criminal Injuries Compensation Authority (CICA) and the funding (if any) that comes from Advice and Assistance, which has different eligibility limits for civil legal aid.
Other conditions attached to the granting of legal aid for victims
Legal aid is not available to victims in the area of criminal justice.
No specific conditions are attached to grants of civil legal aid where granted. SLAB does have the power to grant legal aid if the circumstances of the individual case merit it.
Other conditions attached to the granting of legal aid for defendants
There are no conditions attached to the granting of criminal legal aid, by the courts or by SLAB.
Cost-free court proceedings
Court fees are not payable in the following circumstances:
- For applications lodged under any legislation relating to the registration of births, deaths and marriages
- For applications lodged under the Mental Health (Care and Treatment) (Scotland) Act 2003
- For applications or appeals lodged under the Children's Hearings (Scotland) Act 2011
- For any application under sections 76 to 79 of the Children (Scotland) Act 1995
- For applications lodged under Section 129 of the Consumer Credit Act 1974
- By debtors or creditors in connection with proceedings under the Debtors (Scotland) Act 1987 or the Debt Arrangement and Attachment (Scotland) Act 2002, with the exception of the fee for inspection of report of auction and the auditor of court’s report
- For receiving or examining inventory of estate, additional or corrective inventory of estate (whether or not confirmation is required) in respect of death of emergency service personnel etc., death in active service or death of constables and service personnel targeted because of their status
Sheriff Appeal Court (Civil)
- For any appeal under or by virtue of the Children's Hearings (Scotland) Act 2011
- For any appeal under the Debtors (Scotland) Act 1987 or the Debt Arrangement and Attachment (Scotland) Act 2002
Court of Session
- To debtors in connection with proceedings under the Debtors (Scotland) Act 1987
- For motions or oppositions to motions, enrolled or made orally at the Bar, whose purpose is only to initiate further steps of procedure, including:
- Rule 19.1 (decrees in absence)
- Rule 22.3(5)(a) (closing record)
- Rule 36.13 (death, disability, retiral etc. of Lord Ordinary)
- Rules 37.1(2)(b), 37.1(6) and 37.1(7) (applications for jury trial)
- Rule 37.10 (application of verdicts)
- Rule 38.17(1) (orders for hearing)
Additionally, parties may be exempt from paying court fees in certain circumstances if:
- The person or his or her partner is in receipt of income support under the Social Security Contributions and Benefits Act 1992
- The person is receiving an income based on a jobseeker’s allowance (payable under the Jobseekers Act 1995)
- The person is in receipt of universal credit under Part 1 of the Welfare Reform Act 2012
- The person is receiving civil legal aid within the meaning of section 13(2) of the Legal Aid (Scotland) Act 1986 in respect of a matter in the Table of Fees in connection with which a fee is payable
- The fee is payable in connection with an application for a simplified divorce or dissolution of a civil partnership, and the person is receiving advice and assistance from a solicitor under the Legal Aid (Scotland) Act 1986 in respect of that application
- The person’s solicitor is undertaking work in relation to the matter in the Table of Fees in connection with which a fee is payable on the basis of any regulations made under section 36 of the Legal Aid (Scotland) Act 1986, providing for legal aid in a matter of special urgency;
- The person or his or her partner is in receipt of guarantee credit under the State Pension Credit Act 2002
- The person or his or her partner is in receipt of working tax credit, provided that:
- Child tax credit is being paid to the party, or if the party is a member of a couple jointly following a claim for child tax credit (as defined in section 3(5A) of the Tax Credits Act 2002)
- There is a disability element or severe disability element (or both) to the tax credit received by the party
- The gross annual income taken into account for the calculation of the working tax credit is £18,000 per annum or less
- The person or his or her partner is receiving income-related employment and support allowance under the Welfare Reform Act 2007.
- The person or his or her partner is receiving financial or other assistance under the Welfare Funds (Scotland) Act 2015, within the period of 3 months prior to the date the specified fee would be payable but for the exemption.
- The person is applying for a principal remedy of a specified interdict or an exclusion order.
When does the losing party have to pay the winning party's costs?
This depends on the type of action raised. The court rules are quite detailed and should be checked separately for different types of case.
However, in general, the following will apply:
Simple Procedure (for cases up to a value of £5,000)
At the end of a simple procedure case, the court may make an award of expenses. The amount to be awarded may be determined by the sheriff. Alternatively, the clerk of court (sheriff clerk) calculates the amount, either at the time or on a later date.
As a general rule, court expenses are awarded to the party who succeeds in the claim. The expenses must then be paid by the unsuccessful party. There is normally a limit to the amount of the expenses awarded.
- If the value of the claim is £200 or less, there will normally be no award of expenses
- If the value of the claim is between £200 and £1,500, the maximum expenses the court can normally award to the successful party is £150
- If the value of the claim is between £1,500 and £3,000, the maximum expenses the court can normally award to the successful party is 10 per cent of the value of the claim.
If an award of expenses is made, any court fees paid may be included in the award, as long as the total of the expenses and fees does not exceed the maximum limits mentioned above.
Summary cause (for cases up to a value of £5,000)
If the court makes an award of expenses at the end of a case, the amount to be awarded is calculated by the clerk of court (the sheriff clerk) based on a fixed table of costs. This will depend on the amount and nature of the work that was done in the case. Alternatively, the auditor of the court, who is an independent official, may do the calculation (if the sheriff or sheriff clerk decides this is appropriate).
In an action that has been defended, the clerk of court first hears the parties on the claim for expenses and costs incurred. This is usually done at the conclusion of the final hearing of any case. However, if the sheriff issues his or her decision at a later date, or if there is insufficient time at the end of the hearing, the case may be continued to another date for a special hearing on expenses, when both parties may appear.
As a general rule, court expenses are awarded to the party that succeeds in the claim. The unsuccessful party must pay the expenses.
After the sheriff clerk or auditor of court has calculated (assessed) the amount of expenses, the account will be submitted to the sheriff for approval. If this has been done at a separate hearing for expenses, the sheriff clerk will fix a date and time for the case so that the account of expenses can be approved by the sheriff.
The sheriff’s final decision (decree) on the case cannot be pronounced until the account of expenses has been approved by the sheriff. This will be done at the same time as the approval of the account.
In such cases, it is open to the court to decide whether or not to award expenses. In terms of the rules, expenses allowed in any case must be taxed before granting the decree for payment of those expenses, unless they are modified to a fixed amount.
Normally the court deals with expenses in stages. The first stage is when the sheriff makes a decision on whether the pursuer or defender is entitled to expenses, and allows an account of expenses to be drawn up and lodged with the court. The court then sends the case to the auditor of court, an independent official, to tax the account of expenses and make a report. Finally, after the auditor has taxed the account and after the sheriff has decided on any objections to the auditor’s report, the court will make an order for payment of the taxed expenses.
Court of Session
The procedure in the Court of Session is similar to that in ordinary cause, whereby the court will find a party entitled to expenses, (subject to the rule regarding modification) and remit to the auditor of court for the expenses to be taxed.
The court will make an order for payment of the taxed expenses – unless satisfied that there is special cause for not doing so.
Normally, a motion is required to be put before a sheriff/judge. The purpose is to request that, in addition to witnesses being entitled to ordinary witness expenses, they are certified as entitled to additional remuneration as skilled witnesses.
Translators' and interpreters' fees
In simplified divorce applications, the rules of court require that, where documents must be served on a person who resides outside Scotland, a translation of the document into the official language of the country in which the service is to be executed must be provided by the party lodging the simplified divorce application.
The practice in relation to interpreters is that the person requiring an interpreter pays for the service. However, in particular cases, the court may determine that a translator is required in the interests of justice and, in such circumstances, may order that the court pays the interpreters’ expenses.
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