Detailed Provisions Payment of fees for legal work Section 94: Sections 92 and 93: further provision
274.This section makes further provision about the duty placed on Scottish Ministers to pay fees for legal work carried out in making an application and to pay certain fees for legal work in exceptional cases. It relates to the rules surrounding a ‘fee payment request’ (as defined in subsection (1)) and the amount of fixed fees. Subsection (2) provides that only a solicitor may make a fee payment request.
275.Subsection (3) allows the Scottish Ministers to make regulations about fee payment requests, including providing for time limits for making a fee payment request, any steps that must be taken prior to making such a request (which could, for example, require prior authorisation to be sought before incurring additional costs which might lead to a fee payment request under section 93(3)), the form and content of the request, and the information and evidence to be provided in or with the request.
276.The regulations can also make provision about legal work which is or is not to be regarded as reasonably undertaken (see also paragraph 269 of these Notes). This could, for example, involve specifying that certain types of work will be regarded as being undertaken in making an application or in connection with a proposed application, while still leaving the assessment of reasonableness to Redress Scotland. The power could also be used to specify types of work, or circumstances in which work is undertaken, which will lead to a conclusion that the work is not reasonably undertaken. There is a power to modify enactments when making such provision, as a consequential modification to section 92(4) may be appropriate.
277.Regulations under subsection (3) are subject to the negative procedure, except where they modify an Act and are therefore subject to the affirmative procedure (see section 107(4)).
278.Subsection (4) allows for regulations to prescribe the level of the fixed fees or scales of fees for legal fees and the conditions under which these will be payable. By virtue of section 107(1)(a), different provision may also be made for different purposes, so different fees could be set for different things. For example, this could be based on (among other things) the type of redress payment sought, on whether the application involves a review, on whether there has been a previous application to the redress scheme in respect of the person, or the amount that is offered to the applicant. Regulations under this subsection are subject to the negative procedure.