Joint Committee on Statutory Instruments Third Report



APPENDIX II

Memorandum by the Lord President's Private Office

ACT OF SEDERUNT (FEES OF SOLICITORS IN THE SHERIFF COURT) (AMENDMENT) 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%.

Explanation

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 party.

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 86 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


 
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