Redress For Survivors (Historical Child Abuse In Care) (Scotland) Act 2021 - payment of legal fees and related decisions: statutory guidance - updated November 2024

Additional legal fees (section 93 (3)) and prior approval

33. Where unexpected or exceptional circumstances arise and it is reasonable for a solicitor to carry out legal work in making an application for a redress payment or in connection with a proposed application the solicitor may seek an additional sum. This may be payable in addition to the relevant prescribed sum, if the solicitor considers that this does not adequately reflect the cost of legal work. Before such work is undertaken, the solicitor must first submit a written request to the Scottish Ministers seeking authority in principle (“an authority in principle request”) to undertake any legal work in excess of that covered by the prescribed sum and specify the additional sum that is likely to be requested in the fee payment request. However, if prior approval has not been sought, but there is good reason for the solicitor not having obtained authority in principle, this requirement may be dispensed with.

34. Once an authority in principle request has been received by the Scottish Ministers, they must, as soon as reasonably practicable, refer it and any information accompanying it to Redress Scotland.

35. Redress Scotland must then assess whether there are exceptional or unexpected circumstances which justify the solicitor reasonably undertaking the work identified so that authority in principle ought to be given. If the authority is to be given, Redress Scotland will indicate if the additional sum specified in the authority in principle request is appropriate or whether an alternative sum is appropriate.

36. In indicating what alternative sum would be appropriate, Redress Scotland may take into account the full facts and circumstances within the request, in order to assess what is reasonable. For example, if the request is for fees that include travelling time and time interviewing witnesses, it would probably not be necessary or reasonable for two rather than one solicitor to attend to take a witness statement.

37. The outcome of Redress Scotland’s assessment of the authority in principle request, together with a summary of its reasons, will be notified to the solicitor by the Scottish Ministers as soon as reasonably practicable after they receive it.

38. Every request for an additional sum will have to be considered on its own merits and in light of the particular facts and circumstances of the application or proposed application. To allow for this, as noted above, the fee payment request must contain information detailing the legal work it is submitted was reasonably undertaken and the exceptional or unexpected circumstances which have arisen.

39. Examples of exceptional or unexpected circumstances which may justify the solicitor seeking an additional sum may include, but are not limited to:

• Where the solicitor requires to conduct a number of interviews with witnesses to obtain statements in support of an application, involving work in excess of that covered by the prescribed sum;
• Where the solicitor requires to carry out significant work where an application for a redress payment is affected by convictions for serious offences under section 60; or
• Where the solicitor requires to instruct an opinion from counsel or relevant expert. The opinion or expert report must relate to the application for redress. An additional sum would not be considered justified where the opinion sought was in relation to advice of the prospects of success of a civil claim. Additional sums are not intended to cover that type of advice or assistance. Where an applicant wishes to explore their prospects of success of a civil claim, they are encouraged to do so and to access existing mechanisms to fund that, including legal aid.

40. A solicitor may request a review of Redress Scotland’s assessment of an authority in principle request if such authority is not given, or Redress Scotland assesses that a sum less than that specified by the solicitor would be appropriate. Unless there has been an intervening change of circumstances, and provided the fee payment request relates to the same work for which the authority in principle was given, the level of any additional fee payable will reflect what Redress Scotland has agreed to at the outset.