04 April 2019

Section 108 of the Courts Reform (Scotland) Act 2014 provides that where counsel is instructed in a Sheriff Court action, the court must sanction the employment of counsel if the court considers, in all the circumstances of the case, that it is reasonable to do so.

The case of Daniel Graham-v- Enviroclean (Scotland) Limited provides useful guidance on the point. A link to the case can be found here.

Counsel had been instructed by the pursuer throughout the case and had been instructed to provide an opinion on quantum; draft the initial writ; attend two consultations with the pursuer; prepare adjustments and a valuation; and attend the pre-trial meeting. The defenders conceded that sanction for counsel should be granted, but the motion was opposed on the basis that instructing counsel for all the pieces of work was excessive and that the firm pursuing the claim ought to have been capable of carrying out some of that work themselves. The key points are noted below:

1. The significance of sanction for counsel being considered by the court is not to allow the court to determine whether or not the fees of counsel are allowable for any particular piece of work. That is a matter for the auditor. However, the auditor cannot allow counsel’s fees unless sanction has been granted.
2. The Act makes it clear that sanction can be granted for part of or the whole of, the proceedings. Where counsel has been instructed throughout the whole of the proceedings, sanction for the whole of the proceedings should ordinarily be sought rather than for specific pieces of work. Only work done by counsel will be allowed by the auditor.
3. It remains open to the opposing party to argue that sanction should be granted for some, but not all, of the case. An example might be where counsel is instructed for a proof due to the skill required to lead evidence from a child witness, but the case was otherwise not complex.
4. In most cases the circumstances of the case which make it necessary to instruct counsel will apply to the whole of the case or not at all.
5. It should be set out in the motion what work counsel has done, to allow the other party to take an informed view on whether the motion should be opposed or not.
6. Even if sanction is granted, it is ultimately for the auditor to decide if the work done in respect of a specific piece of work or the fee charged by counsel for that piece of work, is excessive.

In this case, sanction for counsel was granted. The parties had agreed that the case was suitable for employment of counsel. The Sheriff was satisfied that the case was of a significant enough value and was sufficiently complex with regards to causation to justify the instruction of counsel throughout the case. The Sheriff observed that the fact that the pursuer’s agents were a specialist personal injury firm was not a relevant factor.

Contact:

Claire White, Partner, cwh@bto.co.uk, 0141 221 8012