03 May 2018

The latest case dealing with the question of sanction for Counsel is that of Neil Robertson v Esure Insurance Limited, [2018] SC EDIN 26.

The Sheriff’s note was issued on 1 May 2018. A link to the note can be found here. The case is now the most recent in a string of decisions by the All Scotland Personal Injury Court dealing with the question of sanction.

Robertson was a claim arising out of a road traffic accident. The sum sued for was £17,000. It settled for £5,000 at the pre-trial meeting. The pursuer’s agents sought sanction for the employment of Counsel on the basis of the ‘importance’ to the pursuer. He was a trainee solicitor. It was a low speed impact and he had not consulted his doctor. The absence of contemporaneous medical evidence was argued to put him in a difficult evidential position.

He was, apparently, concerned that if the case went to Proof there was a risk of the Court making an adverse finding on his credibility as a witness which could impact upon him being considered a ‘fit and proper person’ for admission as a solicitor which was a crucial point for him. Moreover, the personal injury claim also included a subrogated claim for credit hire costs. His agents were also instructed by the credit hire company. In the face of a global settlement offer being made, it was argued that, to avoid the appearance of a conflict of interest, it was appropriate to instruct Counsel who would be seen as independent.

The defenders’ position was that it was a straightforward claim. The pursuer’s agents were specialist practitioners and the case was well within their capabilities. It was argued that global offers were made in nearly every claim of this type (i.e. one for credit hire costs and damages for personal injury). If that was a ground justifying the employment of Counsel, then that would affect every case. It was also argued that all pursuers potentially face challenges to their credibility. The fact that he was a trainee solicitor did not alter the position. It was argued his career prospects would have been more likely to depend upon his performance during his traineeship than anything arising from the case.

The test for sanction for Counsel in terms of s.108 of the Court Reform (Scotland) Act 2014 is well-known. The Court must grant sanction for employment of Counsel if, in all the circumstances of the case, it is reasonable to do so. The considerations to be taken into account by the Court are 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.

The test to be applied is one of objective reasonableness, assessed at the time that the Court hears the motion. The onus falls upon the pursuer to satisfy the Court that it was reasonable to have instructed Counsel. The pursuer has to point to a feature of the case which firstly made it reasonable to have instructed Counsel and secondly informs the test of objective reasonableness. 

In Robertson, the Court refused to grant sanction for Counsel. It held that the case was straightforward. It raised no complex issues. In the Court’s view, the defenders were not making a root and branch attack on the pursuer’s credibility. The question of his credibility was, in the Court’s view, unlikely to arise sharply given the focus of the defenders’ case lay on causation of injury, not that the pursuer was lying or exaggerating. It was not satisfied that the importance of the case was such to merit the employment of Counsel. Nor was it convinced by the potential conflict of interest created by the pursuer’s agents also acting for the credit hire company. That was a choice by the agents and was held to arise externally to the proceedings, not as part of them.

It is trite to say that each case turns upon its own facts and circumstances. However, the refusal to grant sanction for Counsel in Robertson provides another useful reminder of the considerations the Court will take into account when considering motions for sanction. It should, hopefully, cause pursuers’ agents to pause for thought when considering the instruction of Counsel in low value, straightforward claims in the absence of a compelling distinguishing feature which would make the instruction of Counsel objectively reasonable.

Contact: Mark Hastings, Associate mfh@bto.co.uk T: 0141 221 8012