Introduction

The case of Amir Beroghani v Scottish Legal Aid Board ([2021] CSIH 3) addresses a pivotal issue concerning the interpretation and application of the Civil Legal Aid (Scotland) (Fees) Regulations 1989, specifically Schedule 4. The crux of the dispute revolves around the entitlement of senior counsel to fees for preparation and attendance at a permission hearing before the Inner House of the Court of Session. The parties involved include Amir Beroghani, the applicant represented by the Noter (Mungo Bovey, QC), and the Scottish Legal Aid Board (SLAB), the respondent.

Summary of the Judgment

The Court of Session's Inner House adjudicated on the objections raised by SLAB against the Noter's fee submission. The Noter sought £2,500 plus VAT for preparation and attendance at a permission hearing, which SLAB contested. The Auditor initially abated the fee significantly, denying payment for preparation and reducing the hearing fee to £487.50 plus VAT. The Court, upon reviewing the arguments, determined that the Auditor erred in law by misapplying Schedule 4's provisions. The judgment upheld the Noter's entitlement to both preparation and attendance fees, remitting the case back to the Auditor for reconsideration.

Analysis

Precedents Cited

The judgment references several key precedents that influenced its outcome:

• O'Neill QC, Noter (2011 SCLR 143): Highlighted the importance of reasonable remuneration to ensure access to justice.
• Geddes v Lothian Health Board (1993): Emphasized the need for reasonable fees to support the effectiveness of legal representation.
• McCall v Scottish Ministers (2006 SC 266): Clarified the application of fee regulations within different judicial contexts.
• Haddow, Noter (W v The Secretary of State for the Home Department) (2018): Initially suggested permission hearings do not equate to "proof, debate or like hearings," a position later contested in this case.

Legal Reasoning

The Court meticulously dissected Schedule 4 of the Civil Legal Aid Regulations, distinguishing between prescribed and assessed fees. The key points of legal interpretation include:

• Prescribed Fees: Specific fees outlined within the Tables of Fees for particular classes of proceedings.
• Assessed Fees: Fees determined by the Board or Auditor when no prescribed fee exists, aiming for reasonable remuneration.
• Paragraph 4 vs. Paragraphs 5-7: Paragraph 4 generally includes preparation within prescribed fees, while paragraphs 5-7 allow for additional fees under certain conditions.
• Interpretation of "Like Hearing": The Court concluded that permission hearings often share characteristics with debates, necessitating preparation and justifying additional fees.

The Court held that the Auditor incorrectly applied paragraph 5 to an assessed fee, which should have been governed by paragraph 3, allowing for a broader assessment based on reasonable remuneration principles.

Impact

This judgment significantly impacts future cases involving legal aid fee assessments by:

• Affirming that preparation work cannot be disregarded in assessed fee calculations.
• Clarifying that permission hearings can qualify as "like hearings," thereby supporting additional preparation fees.
• Promoting consistent and reasonable remuneration for senior counsel, ensuring access to justice for legally aided litigants.
• Guiding Auditors and SLAB in applying Schedule 4 provisions with a focus on reasonableness and economic considerations.

Complex Concepts Simplified

Prescribed vs. Assessed Fees

Prescribed Fees are fixed amounts set within the regulations for specific types of legal work. They provide clarity and consistency in remuneration for commonly occurring legal services.

Assessed Fees come into play when prescribed fees do not exist for certain types of legal work. In such cases, the Board or Auditor evaluates the appropriate fee based on the nature and complexity of the work, ensuring that counsel is fairly compensated.

"Proof, Debate or Like Hearing"

This phrase refers to types of legal proceedings that are substantive and require significant preparation and participation, akin to formal debates. Permission hearings, which decide whether an appeal should proceed, often involve detailed submissions and arguments, making them comparable to debates and thus justifying additional preparation fees.

Conclusion

The Supreme Court's decision in Amir Beroghani v Scottish Legal Aid Board underscores the judiciary's commitment to ensuring that legal professionals receive reasonable remuneration for their work, particularly in contexts that are essential for access to justice. By correcting the Auditor's misapplication of the regulations, the Court reinforced the principle that both preparation and attendance at substantive hearings must be adequately compensated. This judgment not only rectifies the specific dispute at hand but also sets a clear precedent for future interpretations of legal aid fee regulations, ultimately fostering a more equitable and effective legal aid system in Scotland.