Awards of funding for legal expenses

This page provides a high-level summary of the conditions on which awards of funding for legal expenses are made, and of how claims for payment under those awards are assessed. 

Background

  1. The power for the Chair of the Inquiry to make awards of funding for legal expenses derives from Section 40 of the Inquiries Act 2005.  
  2. To be eligible for an award, the recipient must be: 
    1. attending the Inquiry or otherwise providing evidence to the Inquiry; or 
    2. have a particular interest in the proceedings or outcome of the Inquiry. 
  3. In making such awards, the Chair must comply with the conditions set down in Rules 18 and 19 of the Inquiries (Scotland) Rules 2007. 
  4. Rule 19(2) requires the Chair of the Inquiry, when making an award, to specify: 
    1. the nature and scope of the work to be funded; 
    2. the hourly rates to be paid; 
    3. any limits on the financial sums, or number of hours, which will be paid; 
    4. the frequency with which claims for payment must be submitted; and 
    5. the form in which any such claims must be submitted. 
  5. Section 40(4) of the 2005 Act permits Scottish Ministers to set additional conditions for the Chair when exercising the power to make awards. Scottish Ministers have set such conditions, and these can be found in the Determination by Ministers Under Section 40(4) of the Inquiries Act 2005 issued on 25 October 2022, which can be found in Annex 1 of the Funding Protocol for Legal Expenses. 

Conditions

  1. When the Chair of the Inquiry makes an award, an ‘award letter’ is issued to the legal representative of the recipient of that award. The letter specifies: 
    1. which lawyers are approved to do work under the funding award; 
    2. the hourly rate which those lawyers may charge when doing so; 
    3. how many hours each lawyer may spend on the work per week; 
    4. how many hours in total each team of lawyers may spend on the work per calendar month; 
    5. what types of work are covered by the award; 
    6. what types of work are excluded from the award; 
    7. how often claims for payment must be submitted under the award; and 
    8. the form in which claims must be submitted. 
  2. Work done by lawyers who have not been approved by the Chair is not covered by the award. 
  3. The hourly rates which lawyers may charge when doing work under the funding award were set by the Scottish Ministers in paragraph 3(e) of the Determination.
  4. The rate an individual lawyer may charge is fixed at the point they are approved by the Chair, and does not automatically increase due to the passage of time or because they have gained additional experience or qualification.
  5.  The maximum number of hours per week each lawyer may spend on work under the funding award was set by the Scottish Ministers in paragraph 3(f) of the Determination. The maximum number of hours per calendar month each legal team may spend on work under the funding award is set by the Chair, and is determined on consideration of the circumstances of the individual award recipient. 
  6. Claims for payment in excess of the permitted monthly or weekly hours are not covered by the award and payment will be capped at the amount permitted. 
  7. The Inquiry does not guarantee that claims for payment which are for fewer hours than the weekly or monthly maximum specified in each award letter will be paid in full, as all claims are scrutinised in line with the principles set out in the guidance described below under the heading Assessment of Claims. 
  8. Awards of funding cover work by legal representatives where that work: 
    1. is in connection with the specific Terms of Reference for which the award recipient has been designated a core participant in the Inquiry; 
    2. is necessary to facilitate the award recipient’s participation in the work of the Inquiry, and is fair, reasonable, and proportionate; and
    3. can be identified as having been done in effectively, efficiently, avoiding unnecessary duplication, and making the best use of public funds. 
  9. Awards of funding cover work of the following types:  
    1. considering instructions from award recipients; 
    2. advising on how to engage with the Inquiry (i.e. providing witness statements, or via the Inquiry’s public participation project, Let’s Be Heard) with a view to directing award recipients to the most appropriate option for them and the Inquiry; 
    3. advising in relation to witness statement interviews with Inquiry staff, making a witness statement, providing documents or other evidence to the Inquiry, or any other request under Rule 8 of the 2007 Rules; 
    4. corresponding with the Inquiry about its investigations; 
    5. considering the material contained in Inquiry documents; 
    6. preparing and making an opening statement at a hearing, where this has been permitted by the Chair; 
    7. preparing for and representing the award recipient at meetings, preliminary hearings and evidential hearings of the Inquiry; 
    8. making an application for permission to examine witnesses giving oral evidence, and any relevant incidental applications; 
    9. making closing or final statements or submissions; and 
    10. advising in relation to any warning letter issued by the Chair under Rule 12 of the 2007 Rules. 
  10. The funding awards do not cover the following activities unless the relevant legal team are given advance written permission by the Inquiry: 
    1. work that falls within the scope of the award of expenses under section 40(1) of the Act (Expenses of witnesses, etc.); 
    2. investigative work, or work in relation to obtaining expert reports;  
    3. taking and preparing witness statements; 
    4. assisting in relation to preparing individual submissions to the Let’s Be Heard project; 
    5. work that is not of a legal nature, such as media handling, general client management or the provision of emotional support at Inquiry hearings or events, particularly where such support is available from Inquiry staff or provided by the Inquiry; or 
    6. work in connection with any disagreement, dispute or challenge, whether formal or informal, including by way of judicial review, to decisions made by the Solicitor or the Chair, or any civil proceedings relating to the work of the Inquiry. 

Assessment of claims

  1. Each award letter which is issued to the legal representatives of the recipient of that award attaches a set of ‘billing guidelines’. The guidelines provide further information on how the Solicitor to the Inquiry assesses claims for payment under Rule 21 of the 2007 Rules. 
  2. In assessing claims for payment, the Solicitor to the Inquiry considers the conditions and legal tests contained in the relevant legislation, the Scottish Ministers’ Determination, the award letters, and the general principles which govern the conduct of legal work and the production of bills for such work (including, but not limited to, the division of hours into six-minute ‘units’). 
  3. In particular, the Solicitor to the Inquiry considers the following matters: 
    1. the number of lawyers engaged in any particular task, and whether this is proportionate to the size or complexity of the task; 
    2. the level of experience/seniority of the lawyer performing any particular task, and whether the task is commensurate with that seniority (and corresponding hourly rate); 
    3. whether any supervision of junior team members by senior members ‘adds value’ to the work being produced and charged, as it is the expectation of the Solicitor to the Inquiry that work assigned to each team member should be within their capability; 
    4. whether any time spent by senior team members on ‘file reviews’ for quality control and strategic purposes can be identified as going beyond standard good practice and instead providing a specific service to the award recipient; 
    5. the number of lawyers attending team meetings, and whether each lawyer’s attendance and contribution is necessary and proportionate; 
    6. the number of lawyers attending hearings and other Inquiry events, and whether each lawyer’s attendance and contribution is necessary and proportionate; 
    7. whether the specific expertise of any Advocates (also known as Counsel) on the legal representative teams is being used appropriately for matters which could not reasonably be undertaken by one of the Solicitor members of the team; 
    8. whether any particular task should be more appropriately done by administrative staff, IT staff, or similar, rather than by lawyers; 
    9. where the award recipient is a group of individuals, whether the methods of communication chosen to disseminate information with the individuals within that group is efficient and proportionate to the circumstances of that communication; 
    10. whether the time and cost of any particular task should be apportioned rather than charged in full (such as when the work done relates to both the Scottish COVID-19 Inquiry and the UK Covid-19 Inquiry, or to multiple clients represented by the same firm of legal representatives); 
    11. whether the time and cost of any particular set of tasks, or an ongoing task completed in sections at different times, should be considered as a whole rather than separately, to most accurately reflect the actual cumulative time spent; and 
    12. whether any particular travel, accommodation, or other relevant expense is necessary to adequately represent the award recipient, and whether the time spent and cost incurred is proportionate to the reason for the expense and the circumstances (such as the availability of cheaper classes of ticket, modes of transport, or types of room, and the timing and location of the event for which the expense is incurred). 
  4. Work undertaken to develop IT or other internal systems, to deliver or receive peer-led or external training, to onboard and induct new staff, or to correspond with the Inquiry about changes in team composition are regarded as administrative in nature and thus not covered by the funding award. 
  5. Work undertaken in relation to the operation of the funding award itself (such as requesting an extension, expansion, or other change to an award or the approved legal team, or preparing and submitting claims for payment, or reviewing and disputing assessments of those claims) are not covered by the funding award. 
  6. Travel, accommodation, and other relevant expenses of less than £100 will be assessed at the time of submission of the relevant claim for payment. Where an expense will exceed this threshold, authority to incur that expense must be requested, and provided, in advance.