1. Introduction
The previous heading, ‘Taxation of Judicial Accounts’, gave some suggestions at section 15 about preparing a Judicial Account for a Party Litigant. It may be helpful to update the position of Party Litigants in Scotland; England has different rules. These notes are written to help (I hope) both those preparing a Party Litigant’s Account and those opposing one.
2. For Court actions started after 28 April 2019
‘(1) Where the entitled party was not represented by a solicitor the Auditor may, subject to paragraph (3), allow a reasonable sum in respect of work done by the entitled party which was reasonably required in connection with the proceedings.
(2) In determining what would be a reasonable sum the Auditor is to have regard to all the circumstances, including—
(a) the nature of the work;
(b) the time required to do the work;
(c) the amount of any earnings lost during that time;
(d) the importance of the proceedings to the entitled party; and
(e) the complexity of the issues involved in the proceedings.
(3) Any sum allowed under this rule must not exceed two thirds of the charges that would be allowed under this Chapter if the same work had been done by a solicitor.’[1]
3. A Party Litigant’s time
In one respect, a successful Party Litigant is in a more favourable position than a represented litigant; Party Litigants may claim reasonable expenses for their own time. A represented litigant receives no remuneration for own his time spent in preparation of the case.
4. Work through four stages
(a) was that piece of work reasonably required?
(b) have regard to all the circumstances, including the five listed in paragraph (2) above, and come to a figure for the Party Litigant’s fee for that piece of work.
(c) work out a solicitor’s charge for the same work and reduce it by one-third.[2]
(d) take the lower of the figures in (b) and (c).
5. Choose a Schedule of Fees
The Act of Sederunt mentioned in footnote 1 allows a Party Litigant up to ‘two thirds of the charges that would be allowed under this Chapter if the same work had been done by a solicitor’. Previous Acts of Sederunt provided, in General Regulation 7, that an Account could be charged either under the block fees of Chapter 2 (now Schedule 4, Table 2) or the detailed fees of Chapter 3 (now Schedule 1), but not charged partly on one basis and partly on the other. This prohibition about mixing Schedules is repeated in the 2019 Act of Sederunt:
3.3. (2) The charges to be allowed are those specified in
(a) the table of detailed charges in schedule 1; or
(b) the applicable table of inclusive charges in (underlining mine)
… (iii) for ordinary actions in the sheriff court, schedule 4,
as the entitled party may elect, but the entitled party may not elect to have an account taxed partly on one basis and partly on another.
6. Actions raised before 29 April 2019
The legislation for them is found in three Acts of Sederunt:
(1) Act of Sederunt (Expenses of Party Litigants) 1976 (SI 1976 No 1606),
(2) amended by Act of Sederunt (Expenses of Party Litigants) (Amendment) 1983 (SI 1983 No 1438),
(3) further amended by Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Sheriff Appeal Court) 2015 (SI 2015 No 419), rule 2(2)(a)(ii),
After these amendments, the 1976 Order provides:
‘2. Expenses allowable to party litigants
(1) Where in any proceedings in the … Sheriff Court, any expenses of a party litigant are ordered to be paid by any other party to the proceedings or in any other way, the auditor may, subject to the following provisions of this Rule, allow as expenses such sums as appear to the auditor to be reasonable having regard to all the circumstances in respect of –
(a) work done which was reasonably required in connection with the cause, up to the maximum of two-thirds of the sum allowable to a solicitor; and
(b) outlays reasonably incurred for the proper conduct of the cause.
(2) Without prejudice to the generality of paragraph (1) above, the circumstances to which the auditor shall have regard in determining what sum, if any, to allow in respect of any work done, shall include –
(a) the nature of the work;
(b) the time taken and time reasonably required to do the work;
(c) the amount of time spent in respect of which there is no loss of earnings;
(d) the amount of any earnings lost during the time required to do the work;
(e) the importance of the case to the party litigant,
(f) the complexity of the issues involved in the cause.’
(… definitions of ‘auditor’, ‘remunerative time’ and ‘leisure time’ …)
[1] Act of Sederunt (Taxation of Judicial Expenses Rules) 2019, SSI 2019/75, 3.10; for actions raised before 29 April 2019, see heading 6 below.
[2] Solicitors’ fees cover not only the cost of running their office, paying for professional indemnity and other necessary outlays, but also give them an element of profit, commensurate with their training and experience. In broad terms, in my experience, for every £100 earned in fees, £70 may go on expenditure, leaving £30 profit before tax. Party Litigants are not entitled to make a profit on the work they do in a case, so limiting their recovery to a maximum of two-thirds of a solicitor’s fees is intended to remove any element of profit in what they receive.