Appeal allowed against sheriff's refusal to certify for counsel
A sheriff's refusal to certify the employment of counsel in a low value reparation case has been overturned by the Sheriff Appeal Court.
Appeal Sheriff Andrew Cubie allowed an appeal by David Brown against the decision of Sheriff Douglas Kinloch at Livingston Sheriff Court (click here for report), in Mr Brown's action 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.
The sheriff had noted that the importance of the case to the pursuer was admitted to be not the reason why counsel was instructed – it was because the defenders advised that they had instructed counsel. He held that in the present case this would not confer an "unfair advantage" on the defenders, which was one of the criteria in s 108 of the Courts Reform (Scotland) Act 2014, the satisfying of which meant the court had to grant sanction for counsel.
The defenders did not contest the appeal, but the court considered it should examine the issue fully as the sheriff's decision had been regularly referred to in other courts.
Sheriff Cubie said the test under s 108 was one of "objective reasonableness", remaining within the judgment or discretion of the sheriff. The Appeal Court will only intervene in the event that the sheriff had erred.
He added that the factors in s 108 "need not be considered in isolation; there may be an accumulation of reasons (none of which individually would justify the grant of sanction) which culminate in the decision to employ counsel, reacting to the dynamics of litigation. As long as the appropriate consideration is given to the relevant factors, whether alone or in combination, the sheriff’s discretion will not lightly be interfered with".
The sheriff had not erred in applying the "equality of arms" test: "The sheriff has assessed whether there would have been any unfairness arising from the position and has concluded that there was not. There is no fault in that decision-making process; although others might have reached a different view, that is not the test."
However, in relation to issue of “importance”, he held that the sheriff had fallen into error by giving inadequate weight to a relevant factor. "The sheriff has rejected or minimised the importance of the matter to the pursuer, because that had not, of itself, triggered the instruction of counsel. But it was plainly a factor which informed the decision. The sheriff has been unduly influenced by the fact that the pursuer’s decision to instruct counsel was apparently provoked by the defenders’ decision to do so."
Sheriff Cubie continued: "Whatever the particular trigger was, the court should look at the statutory factors, using its own judgment to determine whether in terms of the statue, sanction should be granted, asking 'Do I think objectively that it was reasonable to instruct counsel in this case?'"
The matter was therefore at large for the court, and "Given the terms of the statute and on an objective consideration of the case, including the acknowledged importance to the pursuer; the sheriff’s view that, despite the defenders’ denial of an attack on the pursuer’s credibility, that is what in fact happened; and the employment of counsel by the defenders, which, although not giving rise to an unfair advantage, is a factor to which the court may have regard in terms of s 108(4), I consider that in all the circumstances of the case, it was reasonable for the pursuer to employ counsel."