SARAH DOW AGAINST M&D CROLLA LIMITED
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
(IN THE ALL-SCOTLAND SHERIFF COURT)
[2016] SC EDIN 21
PN255/15
JUDGMENT OF SHERIFF FIONA LENNOX REITH, QC
In the cause
SARAH DOW
Pursuer;
Against
M & D CROLLA LIMITED
Defender:
Act: Miss Milligan, Advocate; Digby Brown, Edinburgh
Alt: Miss Wallace, BLM, Glasgow
EDINBURGH, 14TH March 2016
Introduction
[1] This personal injuries action was raised at Edinburgh Sheriff Court for determination in the exercise of the all-Scotland jurisdiction of that court. The pursuer sought damages in the sum of £150,000 in relation to an accident at work on 13 May 2014 at the defender’s premises. Liability was not disputed and the action was settled on the basis that the defenders would pay the pursuer £30,000 with a separate payment of £7,324.80 to the pursuer’s employers, Fife Council, in relation to recoverable sick pay. The pursuer’s agents lodged a motion to interpone authority to a joint minute entered into between the parties and seeking sanction for the employment of junior counsel. The motion was opposed insofar as sanction for counsel was sought. It called before me on 14 March 2016. Miss Milligan appeared on behalf of the pursuer and Miss Wallace appeared on behalf of the defender.
Legislation
[2] Section 108 of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”) includes the following provisions:
“Sanction for counsel in the sheriff court and the Sheriff Appeal Court
(1) This section applies in any 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.
(5) References in this section to proceedings including references to any part or aspect of the proceedings.”
Submissions on behalf of the pursuer
[3] Miss Milligan clarified that she was seeking that the court sanction the employment of counsel for the purpose of a single consultation she had had with the pursuer in January 2016. I was referred to a medical report by Professor Margaret McQueen, Professor of Orthopaedic Trauma, dated 17 July 2015 and a further letter from Professor McQueen dated 25 August 2015 (numbers 5/1 and 5/2 of process) in relation to her examination and findings in relation to the pursuer. A complication in this case was that the pursuer had had a pre‑existing blood disorder. I was told that, as a result of the accident on 13 May 2014 when the pursuer slipped on a wet floor in a chip shop, she had sustained an injury to her right elbow. Because of her blood disorder, non-operative treatment was required. As a result, the pursuer had been left with non-union of the right elbow and had been left with ongoing difficulties. These included difficulties with daily living. She is employed as a community support assistant with Fife Council. As a result of the injury to her elbow, she is now unable to swim with clients and is unable to push heavy wheelchairs. She was off work for seven months. She was keen to return to work. However, it was now unlikely that her elbow will improve significantly beyond the recovery already made and she is likely to continue having her current difficulties for the foreseeable future. Professor McQueen had confirmed in her report that the pursuer was compromised on the labour market as a result of her injury in that she would have difficulty undertaking employment requiring any heavier work or any repetitive use of her right arm. The subsequent letter dated 25 August 2015 from Professor McQueen confirmed that the pursuer was properly now to be regarded as being disabled for the purposes of legislation concerning discrimination. However, this was on account of her blood disorder.
[4] I was told that an important consideration in this case was that the pursuer had had an overwhelming fear of losing her job as she and her husband could not survive without her income. She had, therefore, not wanted to appear to her employers as being unable to work. Her line manager had confirmed at precognition that the pursuer is a very diligent employee. The pursuer had not wanted to admit that she had been struggling at work.
[5] I was also told that the pursuer’s employers, Fife Council, are restructuring and that there are fears of redundancies. The pursuer had been particularly concerned that she might be at risk of being made redundant following the accident. She had not wanted to show any weakness at work because of her overwhelming fear about this.
[6] Following the report and letter from Professor McQueen, the pursuer had been precognosed by the principal agent. The principal agent is an experienced solicitor with particular knowledge and experience in relation to personal injury cases. Once he had obtained the report and letter from Professor McQueen and the precognition from the pursuer, he undertook a valuation of the claim in the knowledge that liability was admitted by the defender. His assessment of solatium was at a figure of about £25,000, with wage loss of about £373 and recoverable sick pay totalling about £7,324. He also allowed a figure of about £750 for services. This brought out a total figure of just over £30,000. However, that was without anything for loss of employability. There was an issue about how this aspect of the matter should be assessed. The principal agent had assessed loss of employability as being potentially within the range from nil to £80,000 taking various different scenarios. My attention was drawn to the opinion of Lord Woolman in Patterson v Patterson & Others [2012] CSOH 183, where Lord Woolman had said the following:
“[32] Mr Patterson remains in work and his income is increasing. He has not suffered any past or continuing loss of earnings. Because he may find himself out of work at some point in the future, however, he seeks a lump sum award for disadvantage on the labour market. Such claims are commonly known as Smith v Manchester awards after the case in which they were first discussed: (1974) 17 KIR 1. Such awards have been recognised in Scotland for some time: see Robertson’s Curator Bonis v Anderson 1996 SC 217.
[33] In making a Smith v Manchester award, a great many factors come into play: Moeliker v Reyrole & Co Limited [1976] 1 WLR 132 at 141B – 142C, per Browne LJ. I approach the matter by asking the following questions:
(a) What is the likelihood that Mr Patterson will find himself on the labour market before the end of his working life?
(b) When is that risk likely to materialise?
(c) What are his chances of obtaining a job if that occurs – would he be at a disadvantage compared with an able-bodied contemporary?”
[7] Lord Woolman went on to say at paragraph [34]: “Before an award can be made, there must be a ‘substantial’ or ‘real’ risk that the claimant will lose his job…” Lord Woolman then observed that in Moeliker Browne LJ had contrasted such a risk with one that was merely “speculative” or “fanciful”. In Patterson, Lord Woolman was of the view that there was more than a “fanciful” risk that Mr Patterson would not remain working with his employers for the rest of his career but, whilst he concluded that there was more than a speculative risk, he also held that the risk was at the lower end of the range. Lord Woolman then pointed to several factors which pointed to Mr Patterson having a degree of job security. Lord Woolman, therefore, concluded that any risk that Mr Patterson would lose his job was unlikely to occur for a significant period of time.
[8] Miss Milligan submitted that these were the things that had, therefore, required to be looked at on behalf of the pursuer in the present case. This was a complex area. In many cases an award in respect of loss of employability can be of the order of 18 months’ loss of earnings. One year is not uncommon. It all depends on the different factors coming into play in the particular case concerned.
[9] Miss Milligan told me that, at the point when the action was raised by her instructing solicitor, it was thought possible that the pursuer’s claim might be valued at just over £100,000. A tender was made in the sum of £35,000. However, repayable sick pay was £7,324 and so the net amount for the pursuer would in effect have been about £27,675. It was at that stage that the principal agent decided that counsel should be instructed for a consultation.
[10] Miss Milligan reminded me of the terms of section 108 of the 2014 Act. In particular, she submitted that, in relation to sub-section (2), the position was that the court must sanction the employment of counsel if the court considered, in all the circumstances of the case, that it was reasonable to do so. Her submission was that this subsection meant that the court should look back, knowing what the principal agent knew at the stage that he was instructing counsel, to decide whether that was reasonable in all the circumstances. Miss Milligan told me that she would be founding on the factors in sub-paragraphs (i) and (ii) of section 108(3)(a). She told me that both were equally important in the present case. She addressed them in reverse order.
[11] In relation to the importance or value of any claim in the proceedings, Miss Milligan submitted that this was a case in which the pursuer had been deeply concerned about the question of job security. There was a concern that if the pursuer was advised to accept the offer and then went back to work she might then be made redundant the next week. The pursuer was particularly anxious about this. It was important to resolve this at the right value. The amount tendered, after deduction of recoverable sick pay, had been about £27,675. This represented about three times her annual salary. This was, therefore, a lot of money to the pursuer. At that point, the case had potentially been worth a figure of perhaps £100,000. A valuation of the claim was not easy because of the possible scenario that the pursuer could lose her job.
[12] Miss Milligan submitted that the assessment of loss of employability had, therefore, been very difficult in this case. I was reminded that the Ogden tables covered different scenarios. The first was a table dealing with a situation where someone was not disabled and was at work as a female. Another table covered the situation where the female was disabled and whether she was at work or not. There was also the possibility in this case that the pursuer would be “disabled” (according to the letter dated 25 August 2015 from Professor McQueen), but had lost her job during the course of the case. Miss Milligan told the court that she had prepared figures for various outcomes. One possible outcome was that, if the pursuer was disabled and did not have a job, the Ogden tables would bring out a figure of £116,000 for loss of employability. Another outcome would be if the pursuer was disabled but in a job, that would bring out a figure of £70,000, and a third outcome was where the pursuer was not disabled and not at risk of losing her job, in which event loss of employability would have had a nil valuation. I was told that it was against this background that the principal agent had decided that counsel should be instructed to advise on the tender. The principal agent was aware that the pursuer was talking to her employers about changing her work pattern due to difficulties at work. There was talk of redundancies and so the pursuer was particularly concerned about the risk of this if she was changing her work pattern. There was a large differential between the various outcomes of over £100,000 on the one hand down to nothing on the other hand. Miss Milligan submitted that the decision to instruct counsel for a consultation to advise at that stage had been a reasonable thing to do. She had been instructed only for the purposes of the consultation. Sanction was therefore only sought for her employment for this specific purpose. The decision to bring in counsel for this purpose was a proportionate one. She was someone who had had experience in relation to cases involving loss of employability which are known to be difficult. The tender was made on 29 December 2015. The consultation was on 14 January 2016. The particular difficulty in this case was that the pursuer was about to change her work pattern. Miss Milligan submitted that it was important to focus on what the principal agent knew at the time when counsel was instructed and the information the principal agent had had.
[13] In relation to the change of work pattern, although the pursuer was not changing her total hours of work, she moved from working five days a week to four days a week in order to give her a rest day. This was therefore going to be tried. There was to be a three month trial of this on a rolling basis, with a review every three months.
[14] I was told that, unfortunately for the pursuer, she had perhaps been a victim of her own diligence. According to her line manager, the pursuer was one of his best workers. However, when the principal agent spoke to the line manager, it transpired from speaking to her that they were changing her work pattern because of the blood disorder problem. This was therefore a complication. The pursuer had not made much mention to her employers of the elbow problem. This had made it difficult to prove the three points referred to by Lord Woolman. There was, therefore, the problem of what to do about the tender. It was decided to get back to the defender with a counter-proposal. Miss Milligan said that she had valued the claim slightly differently to the principal agent. Her view was that solatium at a figure of £25,000 was too high and that solatium was more likely to be assessed in the range from £15,000 to £20,000, with past wage loss of about £400 and recoverable sick pay of about £7,800. Loss of services might be within the range of about £750 to £1,000. Whilst, therefore, the principal agent had valued the pursuer’s claim at about £33,000, Miss Milligan had thought that the range would be from about £23,000 to £25,000. This was before the question of an award for loss of employability. A counter-proposal was made on behalf of the pursuer to the defender in the sum of £35,000 net of recoverable sick pay of £7,300. This would therefore have effectively totalled about £42,300. This was rejected by the defender. However, the defender then offered the sum of £30,000 plus recoverable sick pay which therefore brought a total value of £37,324. On Miss Milligan’s assessment, this allowed about a year’s salary for loss of employability. Against the background of the information from the line manager about the employer’s reasons for changing the pursuer’s work pattern on account of her blood disorder, the position about loss of employability had become quite complicated. There was still a significant fear on the part of the pursuer about the risk of redundancy. The principal agent had, therefore, thought it better to instruct junior counsel to assist with the valuation in this difficult situation.
Submissions on behalf of the defender
[15] Miss Wallace invited the court not to grant sanction for the employment of counsel for the consultation. Her submission was that the issue of disadvantage on the labour market had not been a complex issue in the present case. An offer of £33,217.28 inclusive of recoverable sick pay of £7,324 had been made on 2 November 2015. Court proceedings had then been raised. A tender had then been submitted for the sum of £30,000 with a separate payment of £7,324 on account of recoverable sick pay. This was the offer which was ultimately accepted by the pursuer. To have answered the three questions in Patterson posed by Lord Woolman, it would only have been necessary for the principal agent to have spoken to the pursuer about her employment situation. It would have become apparent that this was never going to be a high value case. It was clear that the pursuer was still in employment and was a skilled care assistant. The pursuers’ agents were a specialist personal injury firm. The principal agent would have been able to put a valuation on the claim. Miss Wallace confirmed that the offer from the defender which had ultimately been accepted had included loss of employability of £10,000, being approximately one year’s wages. It would have been perfectly possible for the pursuer’s principal agent to value the claim accurately. In relation to the information from the line manager, this could have been identified by telephoning the line manager and discussing the point. She therefore submitted that sanction of the junior counsel should not be allowed in this particular case.
Decision
[16] Having regard to the terms of section 108 of the 2014 Act, I had to consider whether the proceedings were such as to merit the employment of counsel for the purposes of the consultation in this case. This was the particular part of the proceedings in relation to which sanction of the employment of counsel was sought. Having considered all of the information available to me and the submissions made, I was satisfied that, in all the circumstances of this case, the proceedings were such as to merit the employment of counsel for the purposes of the consultation described by Miss Milligan. Put another way, I am satisfied that it was reasonable for the principal agent to have employed counsel for that purpose in this particular case. It follows, because of the way in which section 108(2) is structured, that the court must sanction the employment of counsel for that purpose in this case.
[17] In arriving at this decision, I was satisfied on the information provided that this was a case where the factors in sub-paragraphs (i) and (ii) of section 108(3)(a) were relevant. Section 108(3)(b) did not arise for consideration in this case, and no other matters were raised in terms of section 108(4) of the 2014 Act. My view was that it was plain that the complexity of the issue about loss of employability was, in the particular circumstances of this case, such that the employment of counsel for the consultation was merited. I also think that, although it might be thought that every case is of importance to a party to proceedings, this was a case where both the importance and value of the case were of particular importance to the pursuer for the reasons described to me by Miss Milligan. I, therefore, came to the view without much difficulty that the circumstances of the case were such that it would be reasonable to sanction the employment of counsel for the limited purpose of the consultation in January 2016. I, therefore, granted sanction for the employment of counsel for that specific purpose.
[18] Miss Milligan then invited the court to grant sanction for her employment for the purposes of the opposed motion. This was not opposed, and I was satisfied that it was reasonable to instruct Miss Milligan for the motion. It was particularly helpful to the court to be provided with the background information which Miss Milligan had as to the specific reasons for her having been instructed for the consultation and the particular difficulties which had arisen in relation to the question of valuation of loss of employability, coupled with the reasons why the claim had been of particular importance to the pursuer in the present case given her anxiety about her employment.
[19] I was informed by Miss Milligan that, as at the date of the hearing of the opposed motion before me on 14 March 2016, there had been no written decision in relation to section 108 of the 2014 Act. I, therefore, took the view that, although I gave my decision at the conclusion of the opposed motion, it might be of assistance to give a written decision.