Alan Cameron | Partner

Instructing Counsel in the Sheriff Court – A Word of Caution

The All Scotland Personal Injury Court recently gave some words of warning to those instructing Counsel (otherwise known as advocates or barristers) in the Sheriff Court.

In the case of William Cullen v Scan Building Services Ltd [2018] SC EDIN 15, Mr Cullen had been involved in an accident at work. He suffered a shoulder injury and sued his employer for the sum of £50,000 with the case settling for a much lesser sum of £11,570 before proof. Counsel was instructed and expenses awarded in favour of Mr Cullen. The question arose as to whether it was appropriate to instruct Counsel and therefore whether Counsel’s fees could be recovered in any award of expenses. Scan Building Services Ltd’s solicitors argued that the case was not appropriate for counsel because its value was not high enough and the case was not sufficiently complex.

The court therefore required to consider the factors set out in Section 108 of the Court Reform (Scotland) Act 2014, which sets out that the court requires to grant sanction for the employment of counsel if all the circumstances of the case are such that it is reasonable to do so. In looking to that, the court requires to have regard to:-

  • the difficulty or complexity, or likely difficulty or complexity, of the proceedings;
  • the importance or value of any claim in the proceedings;
  • the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel; and
  • any other such other matters as it considers appropriate.

This is an objective test which comes down to the individual Sheriff or Sheriff’s judgment as to whether the reasonableness test has been satisfied at the time that the court hears the motion and the specific facts of the case.

Sanction for counsel was refused in the Cullen case and while this may give rise to some concerns amongst practioners instructing counsel, the recent cases on this issue have set down some clearer guidance as to whether the court is likely to consider that counsel is appropriate in a given case and also to Defender’s solicitors in considering whether such a motion should be objected to.

The particular issue considered in the Cullen case was whether the case was sufficiently “difficult” and “complex” to justify the instruction of counsel. The court ultimately determined that parties seeking sanction must be in a position to “(i) point to material or information which supports the factor relied on and (ii) show a link between the factor relied upon and the decision which the court is being invited to make”. Therefore parties effectively have to be armed, ready to explain specifically to the court why their case justifies the appointment of counsel.

In the Cullen case the reasons why the court did not consider that counsel was appropriate came down to the fact that it did not consider that the case was sufficiently difficult and complex due to the fact that there were no difficult or complex arguments with regards to liability or quantum and whilst it appreciated that the case was of high importance to Mr Cullen given that it was against Mr Cullen’s employers. Arguments were put forward by Mr Cullen’s counsel that some sensitivity would require to be given in examining the Defender’s witnesses. The court was not persuaded in this argument as it did not consider it had been fully addressed as to why counsel was more capable of that carrying out the examination of witnesses more sensitively than Mr Cullen’s own solicitors or why that was a requirement. Importance of a cause to a client can often be a difficult argument to advance to a court as of course, every litigation is important to every client. Therefore the point to take away from the recent decisions on this matter is that agents should give careful consideration as to the arguments they are able to present to the court on the relevant criteria.

That being said, there is nothing to prevent counsel being instructed in any case but it is an important consideration for parties, particularly if the expenses of instructing counsel are not likely to be recovered.

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

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