Counsel in the sheriff court: reasonable to instruct?

With the increase in the sheriff court privative jurisdiction from September last year, one of the issues of interest is how motions for sanction for the employment of counsel will be approached. Two recent decisions from the All-Scotland Sheriff Court provide some guidance on this point. In each case, the terms of s 108 of the Courts Reform (Scotland) Act 2014 were considered and, despite opposition, sanction was granted.

In Dow v M&D Crolla Ltd [2016] SC EDIN 21 (Sheriff Reith, 14 March 2016), the complexity of the position regarding the pursuer’s claim for disadvantage on the labour market meant that the decision to employ counsel for a consultation had been reasonable.

In V (as parent and guardian of J (a child)) v M&D (Leisure) Ltd [2016] SC EDIN 22 (Sheriff Braid, 17 March 2016), employment of counsel was reasonable on the basis that the claim was on behalf of a young child who might have to give evidence at proof and skill would be required in taking evidence from the child effectively.

It is encouraging that in both cases sanction was granted, despite neither being at the top end of the scale in terms of value or complexity.