Chapter 42 - Appeals under statute - Part I - Taxation of Accounts
42.1.-(1) Where expenses are found due to a party in any cause, the court shall-
(a) pronounce an interlocutor finding that party entitled to expenses and, subject to rule 42.6(1) (modification of expenses awarded against assisted persons), remitting to the Auditor for taxation; and
(b) without prejudice to rule 42.4 (objections to report of the Auditor), unless satisfied that there is special cause shown for not doing so, pronounce an interlocutor decerning against the party found liable in expenses as taxed by the Auditor.
(2) Any party found entitled to expenses shall-
(a) lodge an account of expenses in process not later than 4 months after the final interlocutor in which a finding in respect of expenses is made; and
(aa) if he has failed to comply with sub-paragraph (a), lodge such account at any time with leave of the court but subject to such conditions (if any) as the court thinks fit to impose; and
(b) give written intimation of the lodging of the account, and send a copy of it, to the party found liable to pay those expenses.
(3) Rule 4.6(1) (intimation of steps of process) shall not apply to the lodging of an account of expenses.
Diet of taxation
42.2.-(1) On receipt of the process of the cause, the Auditor shall-
(a) fix a diet for taxation; and
(b) intimate the diet to-
(i) the party found entitled to expenses; and
(ii) the party found liable in expenses.
(1A) The party found liable in expenses shall, not later than 3 working days prior to the diet of taxation, intimate to the Auditor and to the party found entitled to expenses, specific points of objection, setting out each item objected to and stating concisely the nature and ground of objection in each case.
(1B) Subject to paragraph (1C), if the party found liable in expenses fails to intimate points of objection under paragraph (1A) within the time limit set out there, the Auditor shall not take account of them at the diet of taxation.
(1C) The Auditor may relieve a party from the consequences of a failure to comply with the requirement contained in paragraph (1B) because of mistake, oversight or other excusable cause on such conditions, if any, as the Auditor thinks fit.
(2) At the diet of taxation, the party found entitled to expenses shall make available to the Auditor all vouchers, documents, drafts or copies of documents sought by the Auditor and relevant to the taxation.
Report of taxation
42.3.-(1) The Auditor shall-
(a) prepare a report of the taxation of the account of expenses, stating the amount of expenses as taxed;
(b) transmit the process of the cause and the report to the appropriate department of the Office of Court; and
(c) on the day on which he transmits the process, intimate that fact and the date of his report to each party to whom he intimated the diet of taxation.
(2) The party found entitled to expenses shall, within seven days after the date of the report prepared under paragraph (1), exhibit the taxed account, or send a copy of it, to the party found liable to pay the expenses.
Objections to report of the Auditor
42.4.-(1) Any party to a cause who has appeared or been represented at the diet of taxation may state any objection to the report of the Auditor by lodging in process a note of objection within 14 days after the date of the report.
(2) A party lodging a note of objection shall-
(a) intimate a copy of the note to any other party who appeared or was represented at the diet of taxation and to the Auditor;
(b) apply by motion for an order-
(i) allowing the note to be received; and
(ii) ordaining the Auditor to state by minute, within 14 days after intimation under sub-paragraph (c), the reasons for his decision in relation to the items to which objection is taken in the note; and
(c) intimate forthwith to the Auditor a copy of the interlocutor pronounced on a motion under sub-paragraph (b).
(3) After the minute of the Auditor has been lodged in process, the party who lodged the note of objection shall, in consultation with any other party wishing to be heard, arrange with the Keeper of the Rolls for a diet of hearing before the appropriate court.
(4) At the hearing on the note of objection, the court may-
(a) sustain or repel any objection in the note or remit the account of expenses to the Auditor for further consideration; and
(b) find any party liable in the expenses of the procedure on the note.
(5) In the event of an objection being sustained, the court shall ordain the Auditor to amend his report to give effect to the decision of the court.
Modification or disallowance of expenses
42.5.-(1) In any cause where the court finds a party entitled to expenses, the court may direct that expenses shall be subject to such modification as the court thinks fit.
(2) Where it appears to the Auditor that a party found entitled to expenses-
(a) was unsuccessful, or
(b) incurred expenses through his own fault,
in respect of a matter which would otherwise be included in those expenses, the Auditor may disallow the expenses in respect of that matter in whole or in part.
Modification of expenses awarded against assisted persons
42.6.-(1) In a cause in which the court finds an assisted person liable in expenses, the court may, on the motion of any party to the cause, instead of remitting the account of expenses of the party in whose favour the finding is made to the Auditor for taxation, determine to what extent the liability of the assisted person for such expenses shall be modified under-
(a) section 2(6)(e) of the Legal Aid (Scotland) Act 1967 (a); or
(b) section 18(2) of the Legal Aid (Scotland) Act 1986 (b).
(2) Where a remit is made to the Auditor for taxation in a cause in which an assisted person is found liable in expenses, an application for modification under a statutory provision mentioned in paragraph (1) may be made by motion within 14 days after the date of the report of the Auditor made under rule 42.3 (report of taxation).
Taxation of solicitors' own accounts
42.7.-(1) Subject to section 61A(1) of the Solicitors (Scotland) Act 1980 (c), the court may remit to the Auditor the account of a solicitor to his client-
(a) where the account is for work done in relation to a cause in the Court of Session, on the motion of the solicitor or the client; or
(b) in an action in which the solicitor or his representative sues the client for payment of the account.
(2) A motion under paragraph (1)(a) may be enrolled notwithstanding that final decree in the cause has been extracted.
(3) The account referred to in paragraph (1) shall-
(a) be in such form as will enable the Auditor to establish the nature and extent of the work done to which the account relates;
(b) detail the outlays incurred by the solicitor; and
(c) be accompanied by such supporting material as is necessary to vouch the items in the account.
(4) The Auditor shall-
(a) fix a diet of taxation not earlier than 14 days after the date on which he receives the account; and
(b) intimate the diet to the solicitor.
(5) On receipt of intimation of the diet of taxation from the Auditor, the solicitor shall forthwith send to his client by registered post or the first class recorded delivery service-
(a) a copy of the account to be taxed;
(b) a copy of the interlocutor remitting the account; and
(c) a notice in Form 42.7 of the date, time and place of the diet of taxation.
(6) In taxing an account remitted to him under paragraph (1), the Auditor-
(a) shall allow a sum in respect of such work and outlays as have been reasonably incurred;
(b) shall allow, in respect of each item of work and outlay, such sum as may be fair and reasonable having regard to all the circumstances of the case;
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(a) 1967 c.43.
(b) 1986 c.47; section 18(2) was amended by the Legal Aid Act 1988 (c.34), Schedule 4, paragraph 7.
(c) 1980 c.46; section 61A was inserted by the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 (c.40), section 36(3).
(c) shall, in determining whether a sum charged in respect of an item of work is fair and reasonable, take into account any of the following factors:-
(i) the complexity of the cause and the number, difficulty or novelty of the questions raised;
(ii) the skill, labour, and specialised knowledge and responsibility required, of the solicitor;
(iii) the time spent on the item of work and on the cause as a whole;
(iv) the number and importance of any documents prepared or perused;
(v) the place and circumstances (including the degree of expedition required) in which the work of the solicitor or any part of it has been done;
(vi) the importance of the cause or the subject-matter of it to the client;
(vii) the amount or value of money or property involved in the cause; and
(viii) any informal agreement relating to fees;
(d) shall presume (unless the contrary is demonstrated to his satisfaction) that-
(i) an item of work or outlay was reasonably incurred if it was incurred with the express or implied approval of the client;
(ii) the fee charged in respect of an item of work or outlay was reasonable if the amount of the fee or the outlay was expressly or impliedly approved by the client; and
(iii) an item of work or outlay was not reasonably incurred, or that the fee charged in respect of an item of work or outlay was not reasonable if the item of work, outlay or fee charged, was unusual in the circumstances of the case, unless the solicitor informed the client before carrying out the item of work or incurring the outlay that it might not be allowed (or that the fee charged might not be allowed in full) in a taxation in a cause between party and party; and
(e) may disallow any item of work or outlay which is not vouched to his satisfaction.
(7) The Auditor shall-
(a) prepare a report of the taxation of the account remitted to him under paragraph (1);
(b) transmit his report to the appropriate department of the Office of Court; and
(c) send a copy of his report to the solicitor and the client.
