Sanction for counsel: the new landscape

The Sheriff Appeal Court opinion in Cumming v SSE plc [2017] SAC (Civ) 17 (21 April 2017) confirms the reasonableness of the employment of counsel in an asbestos-related pleural plaques case raised in the All-Scotland Personal Injury Court and contains some helpful comment on motions for sanction for the instruction of counsel generally.

The pursuer, a former craftsman electrician, sought damages in respect of his diagnosis of pleural plaques, which developed as a result of exposure to asbestos when delivering and installing storage heaters and electricity meters in domestic premises in the course of his employment.

Although liability and quantum were disputed, the defenders lodged a tender offering full and final damages in the sum of £9,175, and this was accepted by the pursuer. Counsel had been instructed on the pursuer’s behalf after defences were lodged, for the purposes of a consultation, drafting a number of documents and advising on the tender. The pursuer’s agents sought decree in terms of the tender and acceptance and sanction for the employment of counsel in line with s 108 of the Courts Reform (Scotland) Act 2014. This motion was opposed by the defenders on the basis that “it was not reasonable for the pursuer’s agents to instruct counsel as the case did not involve a sufficiently complex area of law”. The matter called before Sheriff Reith QC, who granted sanction for counsel.

The defenders appealed and the appeal was heard by Sheriff Principal Stephen QC, Sheriff Principal Turnbull and Sheriff Principal Dunlop QC. The appellants accepted that the sheriff had an element of discretion when considering whether to grant sanction, but nonetheless maintained that her decision was “plainly wrong” in view of the lack of difficulty or complexity and the absence of any issues of particular importance in the case.

It was submitted for the respondent that the sheriff had paid full and proper regard to the factors which make asbestos-related litigation a complex area in which pursuers face specific evidential burdens, due to the passage of time since the negligent act, and benefit from specialist advice with regard to quantification, future risk, and advice regarding provisional and full and final damages awards.

No cause to criticise

The appeal was refused. In its opinion, the Sheriff Appeal Court approved the approach taken by the court in J’s Parent and Guardian v M & D (Leisure) Ltd 2016 SLT (Sh Ct) 185, that “the test is one of objective reasonableness considered at the time of the motion”, which is a matter quintessentially within the judgment or discretion of the sheriff. The court preferred the respondents’ submissions, noting: “We accept there are evidential difficulties for pursuers in asbestos related cases… We see no basis upon which the sheriff can be criticised for concluding that the difficulty and complexity were such as to merit the employment of counsel” (para 17).

The opinion recognised other factors which add complexity to litigation of this nature, including the need for the pursuer to receive specialist advice in relation to quantification of provisional and full and final damages, and the nature of return conditions to be agreed in any tender and acceptance. The Appeal Court also confirmed that the sheriff had been entitled to hold that the proceedings were sufficiently important to merit the employment of counsel in terms of s 108(3)(a)(ii) of the 2014 Act.

Statutory intention

More broadly, the Sheriff Appeal Court observed that the way in which s 108 of the 2014 Act has been worded may signify “the intention that counsel would play a real and meaningful role in the work of the sheriff court in its new and expanded jurisdiction” (para 20). The court emphasised that appeals on expenses only are “severely discouraged”, while recognising that the decision in this case raised an important point about granting sanction in the sheriff court following the increase in that court’s privative jurisdiction. Its opinion also highlights that s 108 imposes a positive duty on the court to grant sanction if it considers that in all the circumstances it is reasonable to do so, and sets out the factors which the court should consider in reaching that conclusion. The sheriff at first instance is likely to be better placed to assess those factors than the Appeal Court.

This decision is an important one for those seeking to pursue asbestos-related claims, on a full and equitable basis with the benefit of counsel. It comes in the wake of the decisions in W v Advocate General for Scotland [2015] CSOH 111 and Harris v Advocate General for Scotland [2016] CSOH 49, which redefined the scope of awards for pursuers seeking both provisional and full and final damages – discussed at this link.