Cost of legal representation protocol
Purpose:
1. The purpose of this protocol is to:-
⦁ explain how to apply for an award of expenses in respect of legal representation;
⦁ provide information on the scope of the legal representation covered by an award of expenses;
⦁ provide information as to the criteria to be applied by the Chair in deciding applications; and
⦁ provide information on how the assessment of the amount of the award is to be carried out.
2. The procedures set out in this protocol are subject to, and should be read in accordance with, the Notice of Determination made by the Cabinet Secretary for Justice under section 40(4) of the Inquiries Act 2005 (“Minister’s Determination”) set out in the annex to this protocol (see Annex) and rules 17 to 28 of the Inquiries (Scotland) Rules 2007 (“the 2007 Rules”).
3. In this protocol references to “core participant” and “recognised legal representative” are as defined in rule 4 and 5 of the 2007 Rules. A core participant includes an individual, organisation or entity that has a significant interest in the Inquiry. A link to the core participant protocol can be found here. A recognised legal representative is a qualified lawyer acting on behalf of a core participant or any other person required to give evidence or documentation to the Inquiry. The Chair must regard that lawyer as the recognised legal representative in respect of the Inquiry proceedings.
Award of legal representation
4. Section 40 of the Inquiries Act 2005 (“the Act”) gives the Chair exclusive responsibility for deciding whether or not an individual or group is entitled to receive payment for the expenses of their legal representation. It is the Chair who determines who is eligible for a section 40 award. The Chair has the power to make an award of a reasonable amount in respect of expenses properly incurred, or to be incurred, in relation to the Inquiry.
5. To be eligible for an award under section 40, the person seeking the award must:-
(i) be attending the Inquiry to give evidence;
(ii) be attending the Inquiry to produce a document or some other thing; or
(iii) have, in the opinion of the Chair, such a particular interest in the proceedings of the Inquiry or in the outcome of it to justify such an award.
Eligibility for an award of legal expenses
6. The Chair must make decisions about procedure and conduct of the Inquiry, including funding, having regard to fairness. Under Rule 6 of the 2007 Rules where there are two or more core participants, each of whom seeks to be legally represented, and the Chair considers that –
(i) their interests in the outcome of the Inquiry are similar;
(ii) the facts they are likely to rely on during the course of the Inquiry are similar; and
(iii) it is fair and proper for them to be jointly represented,
the Chair may direct that the core participants be represented by a single legal representative and approve a qualified lawyer for that purpose. The approval must be agreed to by the core participants in question. If no agreement is reached within a reasonable period, the Chair may approve a qualified lawyer who the Chair considers has sufficient knowledge and experience to act in that capacity.
7. If the core participants, jointly represented, consider there has been a change of circumstances and their interests require to be separately represented, they can apply to the Chair for separate representation.
Scope of the legal representation covered by the award
8. Where the Chair determines to make an award in respect of legal representation, it will normally be limited to a recognised legal representative carrying out some or all of the following:-
(i) taking and considering initial instructions from their client;
(ii) considering and providing advice to their client on the documentation disclosed by the Inquiry to the core participants;
(iii) advising their client in relation to the making of a witness statement and/or otherwise providing evidence to the Inquiry, in accordance with any request made by the Inquiry under Rule 8 of the 2007 Rules;
(iv) attending Inquiry hearings;
(v) making opening and closing statements, where permitted, in terms of Rule 10 of the 2007 Rules;
(vi) examining their client during their oral evidence (and the evidence of others, should that be necessary), where permission has been given in terms of Rule 9(2) and (3) of the 2007 Rules;
(vii) making an application for permission to examine any witness in terms of rule 9(4) of the 2007 Rules; and
(viii) advising their client in relation to any warning letters issued by the Chair under Rule 12 of the 2007 Rules.
How to apply for an award
9. The Minister’s Determination makes clear that, except in exceptional circumstances, expenditure incurred prior to the Chair’s award of funding will not be recoverable. Accordingly, parties should apply for an award in advance of expenses being incurred. The application is to be sent to the Solicitor at Legal@emmacaldwellinquiry.scot.
10. The application must provide details of the following:-
⦁ the scope and estimated duration of the legal representation for which the award is sought;
⦁ any other expenses relating to legal representation;
⦁ the financial resources of the applicant and confirmation that there are no other means by which such representation can be funded;
⦁ the public interest served in the granting of the award;
⦁ the size and composition of the team that the applicant’s recognised legal representative proposes to engage. In setting out the composition of the team the application will include the seniority of the team members and the work each team member will perform (ensuring that work is appropriate for their seniority and role) and proposed hourly rates of any legal representative(s) providing that representation is subject to the following maximum hourly rates:
Senior Counsel (whether a member of the Faculty of Advocates or a solicitor advocate) £200
Junior Counsel (whether a member of the Faculty of Advocates or a solicitor advocate) £100
Solicitor with over 8 years’ post qualification experience £150
Solicitor with over 4 years’ post qualification experience £125
Other solicitors and fee earners of equivalent experience £100
Trainee solicitors, paralegals and other fee earners £75
11. The maximum hourly rates for travel time by the members of an applicant’s legal team shall be half the agreed hourly rate relating to legal work. Any travelling time must be included within the cap on the maximum number of hours that can be charged by an applicant’s recognised legal representative and in no cases will it be in addition to the cap on hours.
Criteria and conditions of award
12. The Chair, in deciding whether to make an award in respect of legal representation will consider the following criteria:
(a) The financial resources of the applicant; and
(b) Whether making the award is in the public interest.
13. Where the Chair has decided that an award should be made, in that determination the Chair must set the following conditions:
(i) The nature and scope of the work to be funded. Payment will not be made in respect of work that does not fall within the specified scope. An inquiry under the 2005 Act is inquisitorial in nature and legal representatives will not be paid for investigative work or work in relation to obtaining expert reports unless the Chair gives express permission in advance for such work to be carried out;
(ii) The hourly rates to be paid up to the maximum set out in the table above, as set out in the Minister’s Determination annexed to this protocol;
(iii) Any upper limit or limits on the number of hours which will be paid, which will not exceed the maximum number of hours set out in the Minister’s Determination annexed to this protocol;
(iv) The frequency with which bills must be submitted to the Chair; and
(v) The form in which bills must be so submitted.
14. Payment will only be made for work that is evidenced and can be identified as having been done in an effective and efficient manner, avoiding unnecessary duplication and making best use of public funds.
Assessment of the amount of the award
15. Where the Chair has determined that an award should be made and the application relates to expenses that have not yet been incurred, the Chair must send the determination to the applicant and their legal representative (if they have one).
16. If the Chair has determined an award should be made, and the amounts have already been incurred, the Chair must refer the application to the Solicitor to the Inquiry for an assessment to be made.
17. The Solicitor must make an initial assessment of the amount of the award within 21 days of the referral by the Chair. This must be in writing and sent to the applicant and their legal representative (if they have one).
18. If the Solicitor assesses the full amount should be paid, the initial assessment becomes the final assessment. If, however, the applicant disagrees with the initial assessment the applicant must notify the Solicitor to the Inquiry of this, in writing, within 21 days of the date on which the initial assessment of the amount of the award is sent to the applicant. Where the applicant fails to respond within 21 days of the initial assessment, the Solicitor to the Inquiry must issue the final assessment of the award.
19. An initial or final assessment must be in writing and sent to the applicant and, where the applicant has a legal representative, their legal representative.
Dispute procedure regarding assessments
20. Where notification has been given by the applicant to the Solicitor that they do not agree with the award, the Solicitor must send the applicant a response. That response must be in writing and set out details of the points of dispute within 21 days of receipt of the notification. These points of dispute must:
(i) Identify each item to which the Solicitor to the Inquiry objects;
(ii) State the nature of each objection; and
(iii) Propose an amount to be allowed for each item in respect of which a reduction is sought.
21. Upon receipt of the points of dispute, the applicant must then provide a written response to the Solicitor within 21 days of the written points of dispute having been sent. The deadlines can be extended if agreed between the applicant and Solicitor.
22. Where a dispute still exists the Chair must either:
(i) Refer the assessment to the Auditor of the Court of Session together with all relevant evidence, including the application and any correspondence between the Solicitor to the Inquiry and the applicant; or
(ii) Require the solicitor to the Inquiry to issue the final assessment.
23. Where there has been a reference to the Auditor of the Court of Session, the Auditor must hold a review hearing within a reasonable time. The Auditor must notify the Solicitor to the Inquiry and the applicant of the date and location of the review hearing, in writing, as soon as practicable but not later than 14 days before the date of the hearing.
24. A person other than the applicant, their legal representative or the Solicitor to the Inquiry can only be heard at a review hearing with the Auditor’s permission.
25. The Auditor’s assessment must be sent to the applicant and the Chair. The Auditor’s assessment is the final assessment of the amount of the award.
Making an award
26. The Chair must make an award and arrange for payment of the final assessment of the amount of the award. All payments will be made by payable order at the Inquiry’s discretion. To enable payment to be made, a claimant will be required to complete the appropriate documentation supplied by the Inquiry and/or provide bank account details.
27. All applications for and correspondence about awards should be sent to the Solicitor to the Inquiry at Legal@emmacaldwellinquiry.
28. Failure to comply with the procedures set out in this protocol may result in payment being delayed or refused.
29. The Chair and Solicitor to the Inquiry may vary the application and terms of this protocol on a case-by-case basis where necessary to the proper conduct of the Inquiry, subject to the requirements of the Minister’s Determination.
Issued under the authority of the Chair on 9 December 2025.