Drummond & Co v Scottish Legal Aid Board

A solicitor who provides publicly funded advice and assistance beyond the authorised financial limit must obtain the Scottish Legal Aid Board’s approval before carrying out the excess work. Approval granted retrospectively does not make that work eligible for payment from the Scottish Legal Aid Fund.

Section 10(1) of the Legal Aid (Scotland) Act 1986 is mandatory. Work performed without the approval then required is not advice and assistance provided in accordance with the Act. Sections 4(2)(a) and 33(1) therefore preclude payment from the Fund, even if the Board subsequently authorises a higher limit and the work was actually, necessarily and reasonably done.

The appellants, a firm of solicitors, provided advice and assistance under Part II of the Legal Aid (Scotland) Act 1986. They obtained successive increases in the authorised expenditure limit, but performed some work above the limit then in force before receiving the Board’s approval.

The sheriff court auditor excluded that work and taxed the account at £222.24 rather than £250. On judicial review, Lord Clyde reduced the auditor’s decision and declared that the account should be taxed at £250. An Extra Division of the Court of Session allowed the Board’s reclaiming motion, recalled Lord Clyde’s interlocutor and dismissed the petition.

The central issue before the House was whether subsequent approval of an increased limit entitled a solicitor to payment for excess work performed before that approval existed.

1. Appeal dismissed unanimously. Lord Keith of Kinkel delivered the leading speech. Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry and Lord Browne-Wilkinson agreed with his reasoning.

2. Per Lord Keith, sections 4(2)(a) and 33(1) of the Legal Aid (Scotland) Act 1986, read together, permit payment from the Scottish Legal Aid Fund only where the solicitor incurred the fees or outlays while providing advice and assistance in accordance with the Act. Compliance with section 10 was therefore a condition of entitlement to payment.

3. Section 10(1) required the solicitor, once it appeared that the cost was likely to exceed the applicable limit, to determine beforehand what assistance could be provided within that limit. Its direction that the solicitor should not exceed the limit except with the Board’s approval was mandatory. Otherwise, the provision would have no practical effect.

4. Approval had to exist when the excess work was performed. The omission of the word “prior” from section 10(1)(b) did not permit retrospective approval. Nor did the possible inconvenience or delay justify departing from the section’s plain meaning. Because the disputed work was performed before approval existed, it was not provided in accordance with the Act and could not be paid for from the Fund.

5. Per Lord Keith, regulation 11(2)(b) of the Advice and Assistance (Scotland) Regulations 1987 supported that construction. The Board’s power to impose conditions or restrict the subject matter of advice and assistance could operate effectively only before the relevant services were provided. Regulation 16 did not alter the statutory requirement.

6. Lord Lowry acknowledged that the construction could produce anomalies or unsatisfactory results, but considered the statutory language clear. He also regarded the use of regulations 11 and 16 as an interpretative aid to section 10 as justified by the guidelines in Hanlon v The Law Society [1981] A.C. 124.

7. No costs were found due to or by either party.

1. House of Lords: Dismissed the solicitors’ appeal and affirmed the Extra Division’s dismissal of the judicial review petition.

2. Extra Division of the Court of Session: Allowed the Scottish Legal Aid Board’s reclaiming motion, recalled Lord Clyde’s interlocutor and dismissed the petition.

3. Lord Ordinary: Reduced the auditor’s decision and declared that the solicitors were entitled to have their account taxed at £250.

4. Joint auditor of the Edinburgh Sheriff Court: Taxed the solicitors’ account at £222.24 by excluding excess work performed before the relevant increased limit was authorised.