07 February 2017
The case of Brown v Aviva Insurance, [2016] SC Liv 84 concerns a low speed impact case and the issue for sanction for Counsel in that type of action. This is a decision from Livingston Sheriff Court. It is not a decision of the All-Scotland Personal Injury Court and has to be viewed in that context.
Ordinarily, due to their usually modest value, low speed impact road traffic collisions are not often the subject of judicial opinion. This is particularly true in Scotland where one of the last notable decisions (Spencer v Barron) was in 2008 and was not formally reported. Little appears to have changed as can be seen from the recent decision of Brown. Even then, the Court in Brown only dealt with the facts of the case whilst considering whether to grant sanction for the employment of Counsel.
The Brown case arose out of a typical rear end shunt. It went to proof (trial) on causation only, quantum having been agreed at £1,823.80. Judgment was ultimately granted in favour of the Pursuer. The Defenders contended that the accident occurred at such a low speed that no injury could have been caused. This was at odds with the Pursuer’s evidence that he had sustained injury.
The decision is a reminder of the difficulties that Defenders face when challenging claims where they consider the accident circumstances could not have caused the alleged injury. The Sheriff in Brown considered that if the Defenders’ contention was that no injury could have occurred was correct then the logical conclusion would be that the Pursuer was lying about suffering an injury.
It is not possible to tell from the Sheriff’s note whether the Defenders led evidence from both medical and engineering experts challenging the causation of injury. Even if such evidence was led, the Pursuer’s credibility seems to have been critical in deciding the case in his favour.
However, the case has a rosier conclusion for Defenders in respect of sanction for Counsel. Regular readers of Insight and those keeping an eye on legal developments in Scotland will be aware that this is one of the hot topics resulting from the 2014 Court Reforms. In Brown both Pursuer and Defenders were represented by Counsel. Unusually it had been the Defenders who instructed Counsel first. The rationale behind the Defenders’ instruction of Counsel is not touched upon in the Sheriff’s note.
The Pursuer accepted that Counsel would not have been instructed had the Defender not first instructed Counsel. The Pursuer moved for sanction on the grounds of importance to the client and equality of arms. The Sheriff found against the Pursuer on both of these points. In respect of importance to the client it was observed that they had been happy to proceed to the hearing without Counsel prior to the Defenders instructing Counsel. That ground was therefore dismissed.
On the equality of arms point, the Sheriff noted that this only applied where the other side gained an unfair advantage. He considered that as the case could have been presented ‘with relative ease even by an inexperienced solicitor’ the instruction of Counsel by the Defenders did not give them an unfair advantage. In light of this, sanction for the employment of Counsel was refused.
The case serves as a useful recent reminder that in cases where Counsel has been instructed on behalf of one party it does not follow that the Court will automatically grant sanction for the opposing party to employ Counsel. This decision is useful to note in particular for Solicitor-Advocates who may find this argument advanced against them in matters where they are the principal fee earner. It may be difficult for a Pursuer to argue that there is any unfair advantage in such an arrangement. This may be the subject to further judicial comment as time progresses.
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