Advocates and Solicitor Advocates play an important role in sheriff court litigation and solicitors regularly rely on them for the preparation and conduct of cases which may be complex or especially important in terms of facts or evidence.
It is important to remember, however, that an order for expenses will not include sanction for counsel unless a specific motion to that effect is made. The recent sheriff court decision in McCracken v Kazanowski  SC EDIN 80 reminds us that under the statutory test, sanction is very much within the discretion of the sheriff and whether it will be granted is dependent on the particular circumstances of each case.
The facts of the case involved a reasonably straightforward road traffic accident. The pursuer’s car had been shunted from behind by the defender’s vehicle and an action was raised for £7,500 worth of damages, mainly for injury to the pursuer. The date, time place and parties were all agreed and the only active issue was causation: did the pursuer’s vehicle collide with enough force to cause the pursuer’s alleged injuries?
The defender had lodged an engineering report in process which appeared to show the defender had been moving slowly, anticipating that the road was clear but still moving cautiously. He had also lodged photographs of the pursuer appearing to show her exercising in the gym days after the accident when she alleged that she was still in significant pain.
A tender was lodged by the defender for £1,200. The pursuer and their agent consulted with counsel as to whether to accept the tender. Counsel reviewed the evidence, including the defender’s productions and advised of the risk that the defender would seek to use these to attack the pursuer’s credibility. The pursuer submitted that the key issue in deciding to accept the tender was counsel’s assessment of the pursuer’s credibility should she be cross-examined.
The tender was accepted and a motion for decree on the terms of the tender was made. The motion was opposed to the extent that the pursuer sought sanction for counsel’s fees regarding the tender consultation.
The statutory test
The issue of sanction for counsel was previously a common law test at the discretion of the sheriff. The test has now been codified in s108 of the Courts Reform (Scotland) Act 2014. This section provides:
(2) 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.
(3) In considering that matter, the court must have regard to:
(a) whether the proceedings are such as to merit the employment of counsel, having particular regard to—
(i) the difficulty or complexity, or likely difficulty or complexity, of the proceedings,
(ii) the importance or value of any claim in the proceedings, and
(b) the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.
(4)The court may have regard to such other matters as it considers appropriate
The sheriff’s decision
The pursuer’s submissions focused on the (likely) difficulty or complexity of the proceedings. They insisted that the expert evidence produced and the photographic productions all required a careful assessment of the pursuer’s credibility. The pursuer further submitted that this attack on their credibility – essentially the defender’s decision to accuse the pursuer of lying – meant that the proceedings were particularly important to them and their reputation, notwithstanding the relatively low value.
The defender submitted that the facts raised no difficult or complex issues. The questions at proof would essentially be: 1) the speed of the defender’s vehicle on impact; and 2) the duration of the pursuer’s injury.
The sheriff’s position was that the question at proof would likely be whether the collision was sufficiently heavy to be likely to have caused the pursuer’s injury. While the expert engineering report would have informed this assessment, Sheriff McGowan believed the main source of evidence would be the examination and cross-examination of the pursuer and defender. There would be some obvious lines of cross-examination and the eliciting of this evidence should not have presented any difficulty to a reasonably competent court solicitor. Attacks on credibility are common in personal injury cases such as this and such an attack did not make a case especially difficult, complex or important. Having particular regard to the issues in ss108 (3) (a) (i) and (ii), the sheriff refused the pursuer’s motion for sanction for counsel.
The sheriff’s discretion
The sheriff’s discretion to grant sanction for counsel has been dealt with in a number of cases following the coming into force of the 2014 Act. While the test is stated in s108 (2) as one of reasonableness, the sheriff courts have been willing to grant sanction so far. However, in cases with reasonably standard facts, such as this, it appears sanction for counsel will not be seen as appropriate. It is worth also noting the recent decision in McKenzie v McCormack 2017 SC EDIN 67, another road traffic accident where the issues were reasonably straightforward, where sanction was again refused. With relatively few published decisions on this issue, it is still difficult to predict the position the court may take on this matter.
It appears that in order to be more confident in applying for sanction for counsel in a sheriff court matter, parties should look for a genuinely unusual or notable element to the case. Recent examples have included the difficulty of choosing whether to accept a full and final payment or a provisional payment in respect of a pleural plaques diagnosis (SSE v Cumming  SAC (CiV) 17) or the potential difficulties of examining a child witness (J’s Parent & Guardian v M&D (Leisure) Limited 2016 SLT (Sh Ct) 185). There are a variety of other factors which may cause an action to merit the involvement of counsel but without such factors, it is difficult to accurately predict what the sheriff’s position may be.
Sheriff McGowan’s judgment is a reminder that the statutory test imposed by the 2014 Act may result in sanction being denied for cases where agents ideally require to instruct specialist court practitioners. Our Advocacy and Opinions Unit has eight solicitor advocates who are able to assist in appropriate cases. If you have a case where specialist litigation advice is sought, please get in touch.