Trainee's credibility not at stake so as to justify counsel

A trainee solicitor whose damages claim following a road accident was settled for £5,000, has been refused sanction for the employment of counsel despite an argument that the potential impact of a possible adverse finding on credibility on his chosen career as a solicitor in itself made the case of sufficient importance to justify sanction.

Sheriff Kenneth McGowan in the All Scotland Personal Injury Court in Edinburgh held that while that was in principle a factor that could be taken into account, the defences for Esure Insurance Ltd did not make a case that the pursuer, Neil Robertson, was lying or exaggerating.

Mr Robertson had sued for £17,000 following the collision, in which he averred he was jolted and thereafter suffered certain soft tissue injuries to his neck and back, and developed an adjustment disorder. He also claimed repair costs and the cost of a replacement car. Claiming it had been a low impact collision, the defenders challenged the causation aspect, relying on pre-accident medical problems, and also whether it was necessary and reasonable for the pursuer to resort to a credit hire agreement for a replacement car.

For the pursuer it was argued that the case was similar to Brown v Aviva Insurance [2016] SC LIV 84, where the fact that a police officer's credibility was at stake was held a relevant factor. The pursuer had not consulted his doctor and the absence of contemporaneous medical information put him in a more difficult position evidentially. In due course, the question as to whether the pursuer was a “fit and proper person” to be admitted as a solicitor was going to be crucial to him. There was also a possible suggestion of attempted fraud via an exaggerated claim for vehicle repairs.

Sheriff McGowan said the issue had to be approached from the point of view of “objective reasonableness” (Cumming v SSE plc [2017] SAC (Civ) 22), having regard to the factors in s 108(3) of the Courts Reform (Scotland) Act 2014.

As regards personal injuries, “The defenders' averments in answer to that head of claim do not make a positive case that the pursuer is lying or indeed exaggerating. Instead, the focus appears to me to be on the issue of causation, relying in particular on the pursuer’s pre-accident medical problems. I observe, in passing, that these are alluded to or covered in the pursuer’s own medical reports.”

In relation to the other claims, proper vouching was sought, and the use of a credit hire agreement challenged, but “I am unable to detect any suggestion that the defender’s position is that the pursuer was lying or exaggerating.”

The sheriff distinguished Brown, which had gone to proof; here it was “unlikely that a particularly acute decision about the pursuer’s credibility would have arisen for determination if the matter proceeded to proof. And even if such a decision on credibility had been required, I am not satisfied that it is likely that the court would have been in the position of having to adjudicate on the binary question 'honest' or 'a liar'”.

Taking into account the availability of other evidence, the issue of credibility was not in any event so important as to merit the employment of counsel.

He also disagreed that there was a conflict in authorities, at least as regards Scotland; nor was it a factor that the pursuer's solicitors wished to avoid any appearance of conflict of interest where they also acted for the credit hire company, as this was “external to the proceedings and not part of them”.

“In conclusion, none of the factors relied on by the pursuer in this case, either individually or collectively, are of sufficient weight to satisfy me that the proceedings were such as to merit the employment of counsel”, he summarised.

Click here to view the opinion of the court.