Memorandum by the Lord President's Private Office
1998 (S.I. 1998/2675)
1. This memorandum is submitted
to the Joint Committee on Statutory Instruments in response to
a letter of 2nd December 1998 from the Commons Clerk of the Committee.
2. The Joint Committee asked for
an explanation of the inflationary circumstances which were regarded
as justifying increases in certain fees payable to solicitors
(and recoverable from opponents) by between 28% and 43.3%.
We are grateful to the Joint Committee
for drawing this point to our attention. There should have been
no reference whatever to inflation in the explanatory memorandum.
The reference was entirely due to a drafting error on the part
of officials in this office. That error occurred because of a
change-over of the responsible officials at a late stage
in the drafting. The error is very much regretted.
As the Joint Committee will appreciate,
the purpose of the Act of Sederunt was to modify the fees which
a successful litigant is entitled to recover from his opponent.
There had been criticism for some time that, under the previous
arrangements, successful parties required to bear an undue level
of expenses because they could not be recovered from the losing
For this purpose it was appropriate
to increase the level of solicitors' fees to be recovered by the
losing party from his opponent to the level which had been allowed
for some years by successive Auditors of Court in accounts charged
by solicitors against their own clients. This level is basically
per hour with certain additions. The Act of Sederunt therefore
increases the hourly rate to £86,
normally without additions, and the remaining fees are derived
from that basic hourly rate.
When these adjustments were being made,
an anomaly was corrected. The previous table of fees contained
an entry for posts and normal copying charges. The entry for copying
charges had been in existence since the days when documents had
to be copied by hand, later by typewriting. With the advent of
photocopying, of course, the labour involved was reduced, but
the fees were maintained. As a result the overall pattern of fees
was distorted. This was undesirable and the opportunity was taken
to remedy this problem.
For the avoidance of doubt it should
be made clear that no part of the increase in the fees was due
to any allowance for inflation. The reference to inflation arose
because a question was raised at a late stage in the drafting
of the Explanatory Memorandum as to whether in fact inflation
had played any part in the exercise. The official who had been
dealing with the matter up until that point would have known that
it had not. Unfortunately, a new official had just taken over
and, not realising the position, mistakenly thought that the question
about inflation was intended as an indication that inflation had
been taken into account. The Explanatory Memorandum was therefore
redrafted in error to include that reference. We shall request
a correction slip and ensure that the explanatory memorandum is
amended in the Annual Volume.
4th December 1998