DAVID BROWN AGAINST AVIVA INSURANCE
SHERIFFDOM OF LOTHIAN AND BORDERS AT LIVINGSTON
[2016] SC LIV 84
SF34/15
NOTE OF SHERIFF DOUGLAS A KINLOCH
on the question of expenses
In the cause
DAVID BROWN
Pursuer
Against
AVIVA INSURANCE
Defenders
Livingston, December 2016
The Sheriff having resumed consideration of the cause in relation to the question of expenses, on pursuer’s motion, unopposed, finds the defenders liable to the pursuer in the expenses of the action on the Summary Cause scale as assessed; certifies Dr J Martin Simpson, Simpson Medical Reports Ltd, 7 Poplar Crescent, Quarter, Hamilton as a skilled witness who prepared a report for the pursuer; thereafter, having considered the pursuer’s opposed motion to certify the cause as suitable for the employment of Junior Counsel, refuses same.
NOTE:
[1] The pursuer in this summary cause action sought damages for whiplash type injuries sustained in a road traffic accident on 11 February 2015 when another driver ran into the back of his vehicle. He sued the other driver’s insurance company, who admitted that there had been a collision, and that their insured had been negligent. The proof therefore proceeded before me only on the question of “causation”, that is, the question of whether the pursuer was injured in the accident, and damages were helpfully agreed at the sum of £1,823.80.
[2] At the end of the proof, which lasted three days, I found in favour of the pursuer, and granted decree in his favour for the agreed sum, together with expenses on the summary cause scale.
[3] Both parties were represented by Counsel, and Counsel for the pursuer also sought to have the action certified as suitable for the appointment of Junior Counsel. Counsel for the defenders opposed this motion.
Statutory Provision
[4] Counsel for the pursuer reminded me that the question of sanction is now governed by section 108 of the Courts Reform (Scotland) Act 2014, which is in the following terms:
“108 Sanction for counsel in the sheriff court and the Sheriff Appeal Court
(1) This section applies in civil proceedings in the sheriff court or the Sheriff Appeal Court where the court is deciding, for the purposes of any relevant expenses rule, whether to sanction the employment of counsel by a party for the purposes of the proceedings.
(2) The court must sanction the employment of counsel if the court considers, in all the circumstances of the case, that it is reasonable to do so.
(3) In considering that matter, the court must have regard to –
(a) whether the proceedings are such as to merit the employment of counsel, having particular regard to –
(i) the difficulty or complexity, or likely difficulty or complexity, of the proceedings,
(ii) the importance or value of any claim in the proceedings, and
(b) the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.
(4) The court may have regard to such other matters as it considers appropriate.”
Submissions
[5] Counsel for the pursuer accepted that it could not be said, on any view, that the proceedings had been difficult or complex, but submitted that the importance of the proceedings to the pursuer, and the desirability of ensuring that the defenders did not gain an unfair advantage by virtue of the employment of Counsel, justified sanction being granted.
[6] In relation to the importance of the action, Counsel for the pursuer submitted that as the defenders did not accept that the pursuer had been injured in the road traffic accident, it was possible that an adverse credibility finding could have been made against him if his evidence had not been accepted, and that as a serving police officer such a credibility finding could have had serious repercussions for him, and could conceivably have affected his career.
[7] In relation to the question of the defenders gaining an unfair advantage by employing Counsel, Counsel for the pursuers advised me that a few days before the proof his instructing agents had been advised by the defenders’ agents that they had instructed Counsel to represent the defenders at the proof. The pursuer’s agents therefore felt that it was appropriate also for the pursuer to be represented by Counsel at the proof, in order to ensure equality of arms.
[8] In reply, the defenders’ Counsel emphasised that he had been very careful not to make direct accusations of untruthfulness against the pursuer, that not being necessary, he said, for the court to come to a decision about the case. Regarding the question of unfair advantage, Counsel for the defenders submitted that in a straightforward case such as this even if the defenders wished, for their own reasons, to instruct Counsel, that had not given them any unfair advantage.
Observations
[9] Parties instruct Counsel in the Sheriff Court for various reasons, but the party found liable in expenses will only have to pay for this expense if it is reasonable in all the circumstances of the case for them to have to do so. Prior to section 108 being enacted the question of whether sanction ought to be granted was simply “a matter within the discretion of the sheriff” (Macphail, Sheriff Court Practice, 3rd Edn, para 12.25). The new legislation puts matters on a statutory footing, and as Sheriff Peter Braid has pointed out (in the case of J’s Parent and Guardian v M & D (Leisure) Ltd 2016 Rep LR 54 the wording of section 108 is, in some respects, perhaps somewhat curious.
[10] I think it is worth observing that much of subsection (3) might indeed be thought of as being superfluous, and it has to be wondered whether everything could not have been better, and more concisely, stated by adding to the end of subsection (2) the words “having regard to the difficulty, complexity …” Subsection (3) also directs the court to “have regard to” and then to “have particular regard to” which suggests a different emphasis, but it has to be wondered if that was actually the intention.
[11] Be that as it may, the court is now directed that it “must” sanction the employment of Counsel, which suggests that the rule has a prescriptive character, but is only to do this if it is “reasonable to do so”, which seems to turn the decision back into one which is largely, or even entirely, discretionary.
[12] In trying to understand whether the word “must” has any prescriptive significance, and whether it removes any of the discretion previously available to the Sheriff, Counsel for the defenders posed the question of whether it would make any difference if the section read that “the court may sanction the employment of Counsel if it considers, in all the circumstances of the case, that it is reasonable to do so”. He suggested that it would make no appreciable difference, other than the fact that it might prevent an irrational refusal to certify the employment of Counsel, which would be such an extreme possibility that it surely cannot have been the reason for the choice of word. With all of that I would agree.
[13] I was not given any information as to the genesis of section 108, nor have I carried out any research of my own, and the reasons for the section being worded in a way which at first reading suggests a prescriptive approach, remain, to my mind at least, unclear. No matter how the section is read, however, my own view is that the question as to whether or not to sanction the employment of Counsel remains as an entirely discretionary one for the Sheriff, albeit that the discretion has to be exercised properly and having regard to the factors set out in the section.
Decision
[14] The defenders never accepted that the pursuer was injured in the accident, and averred in their response to the statement of claim that the “contact was not made with sufficient force to cause the injury complained of”. It seemed to me that as the pursuer gave evidence that he was injured in the accident, even though the defenders’ Counsel was careful in the way in which he presented the defenders’ case, and careful in the way he approached the matter of the pursuer’s credibility, it was not possible to escape the fact that the defenders’ denial that the accident caused any injury, involved, at least indirectly, an attack on the pursuer’s credibility. A finding that he was not a credible witness, which was not of course the outcome, is something which could have had a serious effect for him. I have no doubt, therefore, that despite the small value of the claim, this summary cause action turned out to be of considerable importance to the pursuer.
[15] The trouble for the pursuer is, however, that the importance of the claim was not the reason why the pursuer or his agents chose to instruct Counsel. As the pursuer’s Counsel candidly, and properly, admitted, they chose to instruct Counsel because the defenders had advised them shortly before the proof that they had instructed Counsel to conduct the proof on their behalf. Until that point, as I understood it, the pursuer was content to be represented by a solicitor. I therefore do not find that the importance of the proceedings to the pursuer is sufficient to justify certifying the case as suitable for Counsel.
[16] In relation to ensuring that the defenders did not gain an unfair advantage by instructing Counsel, this is a consideration which is perhaps spelled out more clearly in the legislation than previously, and is often referred to as the equality of arms provision.
[17] However it seems to me that this provision does not mean that if one side instructs Counsel, and the other side chooses to instruct Counsel in response, the case will automatically be certified as suitable for the instruction of Counsel. The reason for this is that the court is directed to ensure only that no party gains an unfair advantage by virtue of the employment of Counsel. While a party with sufficient resources in a complicated and specialist case might gain an unfair advantage by employing specialist Counsel where the other side could not do so, that was not the position in the present case. This was, as was accepted, an entirely straightforward summary cause action. It was accepted that a collision had taken place. It was accepted that the other driver was at fault. Damages had been agreed, at modest level. It is therefore a case that to my mind could have been conducted with relative ease even by an inexperienced solicitor. Although, for their own reasons, the defenders chose to instruct an experienced Counsel, that in my view is not something which would have given them an unfair advantage. I think that while some solicitors might not have relished having an experienced Counsel appearing against them, nevertheless it would have been possible for a solicitor to have conducted a straightforward case like this one on behalf of the pursuer on an equal basis. In the event, the agents for the pursuer instructed Counsel, but I am not persuaded that it is appropriate for the defenders, as the losing party, to pay for the expense of this.
[18] For those reasons I am not persuaded that the case ought to be certified as being suitable for the employment of Junior Counsel.