9.FEES

9.1 Fees in this section mean fees for work instructed by a solicitor.This section does not cover fees chargeable to other professionals exercising their right of direct access to the Bar.Guidance is published separately in that regard.

9.2 It has traditionally been understood that, as the law stands, an Advocate’s fees are honoraria, and he is not entitled to sue for his fees, at least unless the solicitor has claimed payment of them from the client and the client has paid them to the solicitor.

9.3 Although he may not be entitled to sue for his fees, it is recognised that an Advocate is entitled to payment of a reasonable fee for his services.In the absence of express prior arrangement to the contrary, the instructing solicitor impliedly undertakes a professional commitment to pay a reasonable fee.The arrangements between the Faculty of Advocates and the Law Society of Scotland for payment of fees to Counsel are published separately, as are the arrangements for payment of fees in Legal Aid cases.

9.4 What is a “reasonable fee” depends on the whole circumstances of the particular case.Unless otherwise stipulated, Counsel’s fees cover all expenses incurred by Counsel in the conduct of the case, such as travelling expenses.

9.5 Fees are normally charged after the work is done.Counsel’s clerk, acting on Counsel’s behalf, issues a Note of Proposed Fee to the solicitor.The solicitor is entitled to challenge the amount of the fee proposed.Failing such challenge, the solicitor is presumed to agree that the fee proposed is reasonable and comes under a professional obligation to pay it.

9.6 If the solicitor challenges the fee proposed, the matter will normally be resolved by negotiation between the solicitor and Counsel’s clerk.If they cannot agree, the solicitor and/or Counsel is entitled to require that the matter be determined by the Auditor of the Court of Session.The Auditor is entitled to have regard to all the circumstances and is, in particular, entitled to allow a higher fee than would be allowed on party-and-party taxation.

9.7 Except in Legal Aid cases, where scale fees are specified more or less closely by Statutory Instrument, there is no scale of fees nor does the Faculty offer any indication as to the fees which it is appropriate for Counsel to charge, although the Dean may be asked by Counsel whether any particular fee is “reasonable”.Some guidance may be obtained from consideration of previous decisions of Auditors in the Court of Session or Sheriff Courts.Counsel is entitled to charge his fee on any basis appropriate to the work involved-for example, a composite or “block” fee for all work done, a daily rate, an hourly rate, etc.The solicitor is entitled to challenge the basis of the charge as well as the amount.As a matter of prudent practice, Counsel may wish, in appropriate cases, to keep a record of time spent and work done in dealing with particular instructions.

9.8 The amount of the fee and/or the basis of charging may be agreed in advance between the solicitor and Counsel’s clerk.Provided that an unequivocal agreement has been reached, the solicitor is not entitled to challenge it later.

9.9 Normally Counsel’s fees are negotiated between the clerk and the solicitor.All fees should be paid to Counsel’s clerk.If any fee happens to be paid direct to Counsel, Counsel must account for it forthwith to his or her clerk.Counsel should not under any circumstances whatever discuss or negotiate fees with or receive fees directly from the lay client.

9.10 Speculative actions

It is permissible for Counsel to accept instructions on the footing that there will be no remuneration for his services except in the event of success.

9.11 Fees for Settled or Discharged Cases

Normally, a fee is only chargeable when instructions have been given and accepted.Where instructions have been given and accepted, an Advocate is entitled to charge an appropriate fee for the work instructed even if the case is subsequently settled or the diet is discharged.In addition, where the solicitor knows, or ought in the circumstances reasonably to be aware, that Counsel, in order to comply with his obligations, has kept himself free from other commitments, a fee appropriate to the circumstances may be charged（see Practice Note No 5 of 1996, reproduced at Parliament House Book page C2040, and City of Aberdeen Council v W A Fairhurst 2000 SCLR 392）.Relevant circumstances will include time spent in preparation and the extent to which Counsel has been unable to accept other instructions.Counsel may also charge a fee for negotiating a settlement.

9.12 Referral Fees Counsel may not enter into arrangements by which a commission or referral fee is paid to any third party as a consideration for referring work, or for recommending or introducing counsel to the client or an instructing agent.