NewLaw Scotland success in Sheriff Appeal Court

Kirsten Morrison

Kirsten Morrison

The Sheriff Appeal Court has overturned a decision to refuse sanction for the employment of counsel in a low value personal injury case. David Brown, represented by NewLaw Scotland pursued a claim for damages for whiplash injuries he sustained as a result of a road traffic accident. His claim was successful at Livingstone Sheriff Court but Sheriff Kinloch refused to sanction the employment of junior counsel.

NewLaw Scotland appealed the decision which has now been overturned by Sheriff Cubie in the Appeal Court. Mr Brown’s solicitors instructed junior counsel to represent him at the proof hearing, to ensure the defenders did not have any unfair advantage, after the defender’s agents advised a few days before the hearing that they had instructed experienced counsel.

Under section 108 of the Courts Reform (Scotland) Act 2014 the court “must” sanction the employment of counsel if it considered it “reasonable”, having regard to the likely “difficulty or complexity of the proceedings”, the “importance or value of any claim”, and “the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel”.

At the proof hearing Sheriff Kinloch found Mr Brown to be a reliable and credible witness and awarded him damages however he did not accept it was reasonable to have instructed counsel to represent the pursuer. Counsel for Mr Brown, a serving police office, submitted that the defenders did not accept that the pursuer had been injured and were therefore attacking his credibility. It was argued that an adverse finding could have serious implications for Mr Brown and his career.

In the decision handed down by the Sheriff Appeal Court, Sheriff Andrew Cubie held that the sheriff erred in failing to give adequate weight to the importance of the proceedings to the pursuer. He found it was reasonable for the pursuer’s agents to instruct counsel.

Although rare, the appeal against expenses was allowed as it was thought to be a question of principle and of general interest amongst litigators in Scotland. The question of sanction for counsel was of such importance the Faculty of Advocates had considered seeking to intervene in the proceedings.

Kirsten Morrison, Head of the Motor Department for NewLaw Scotland commented:

“This is an important decision for pursuers and their representatives.  I am delighted the Appeal Court has recognised the importance of these cases to the individuals involved. This decision will help ensure an equality of arms for those pursuing similar cases.”

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