Book reviews: September 2023

Iain Nicol and James Flett 

PUBLISHER: EDINBURGH UNIVERSITY PRESS
ISBN: 978-1474477390
PRICE: £85 (E-BOOK £85)

Written by two people who know more about the subject than probably many judges, this is an absolute “must have” for every practising civil solicitor and advocate in Scotland. 

The question of expenses and which party has to pay and at what level, eventually bedevils every client file and every civil action in the courts, from the sheriff courts to the Court of Session and on occasion the Supreme Court. The handbook covers in detail the applicable Law Society rules and guidance on fees, before exploring in detail issues such as tendering, interim awards of expenses, additional fees and charges; and the oft thorny issue of sanction for counsel. In short, there is nothing which is not covered in this remarkably versatile and comprehensive book. It is also blessed with an excellent index (the hallmark of any useful book for legal practitioners), so the answers to questions can be quickly found. The authors helpfully include a number of styles for drafting pursuers’ offers and tenders for use in both the sheriff court and the Court of Session.

Of particular interest will be the section on success fee agreements and damages based agreements, following the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. Practitioners will also find the chapter “Practical Example of Judicial Account” very helpful in providing an understanding of what happens when a file is subjected to an assessment by law accountants. Readers can have much confidence in this chapter given that one of the authors is the chairman of Alex Quinn & Partners, law accountants. This section includes a helpful commentary on abatements, amendment procedure and specification of documents. There are also very useful chapters covering the certification of skilled persons (experts), and caution and other forms of court ordered security. 

While the book provides an excellent coverage of the issues which commonly arise in relation to expenses, the authors have also included a helpful miscellaneous section which includes curator ad litem charges, expenses in relation to the restoration of a company to the register, and protective expenses orders in environmental appeals and judicial reviews. Protective expenses orders have been considered in detail by the Court of Session in recent years in relation to community based challenges, and the authors include helpful summaries of the court’s thinking in relation to these orders in the decisions of the ECJ in R (on the application of Edwards) v Environment Agency, IVth Chamber, C-260/11; and the decision of the Court of Session in Carroll v Scottish Borders Council 2014 SLT 659. Useful relevant case law commentaries are never far away throughout the book, providing a very helpful up to date practical assessment of how the Scottish courts have determined various expense related issues, a vital source of intelligence for any practitioner. 

In a comprehensive appendix to the substantive text, the authors in addition to providing templates for pursuers’ offers and tenders, have reproduced the key legislation and protocols, including the Courts Reform (Scotland) Act 2014, templates for success fee agreements and cooling off notices, and the Faculty of Advocates fee scheme. 

In summary, this excellent handbook is without doubt essential material for any solicitor in civil practice in Scotland. It is a book that needs to be close at hand and not pushed to the back of a shelf, whether it’s a virtual or actual one. If ever there was a book deserving the byline “written by practitioners for practitioners”, this is it. 

William Frain-Bell, advocate