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Sheriff refuses sanction for counsel instructed to match other side

10 January 2017

A sheriff has refused to certify the employment of junior counsel in a low value reparation case, where counsel was instructed for the pursuer because the defenders advised they had done likewise.

Sheriff Douglas Kinloch at Livingston gave his decision in a summary cause action by David Brown against Aviva Insurance, seeking damages for whiplash type injuries following a road accident. Negligence was admitted, and damages had been agreed at £1,823.80; the only contested element was causation of injury.

It was accepted that s 108 of the Courts Reform (Scotland) Act 2014 applied, under which the court "must" sanction the employment of counsel if it considered it reasonable, having regard among other matters to likely difficulty or complexity, 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".

The pursuer, who was successful after a three day proof, argued that while the proceedings had not been difficult or complex, they had been important to him as a serving police officer as an adverse finding on credibility could have had serious repercussions, and could have affected his career. Counsel had been instructed after his agents were advised a few days before the proof that the defenders had instructed counsel, in order to ensure equality of arms.

Sheriff Kinloch accepted that the case was important to the pursuer, but, he said, that was not why counsel had been instructed – as the pursuer had frankly admitted.

As for unfair advantage, s 108 did not mean that if one side instructed counsel, and the other side chose to instruct counsel in response, the case would automatically be certified as suitable. The provision was only directed against a party gaining an unfair advantage, and "This was, as was accepted, an entirely straightforward summary cause action" – one that could have been conducted with relative ease even by an inexperienced solicitor.

"Although, for their own reasons, the defenders chose to instruct an experienced counsel, that in my view is not something which would have given them an unfair advantage", the sheriff stated. "I think that while some solicitors might not have relished having an experienced counsel appearing against them, nevertheless it would have been possible for a solicitor to have conducted a straightforward case like this one on behalf of the pursuer on an equal basis."

He therefore refused to certify the case as suitable for the employment of junior counsel.

Click here to view the sheriff's judgment.

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