About this case

Case name

Margaret Kirkwood v Thelem Assurances

Case reference number

A20/19

Date of hearing

Friday 16 May 2023

Division

First

Judges

Lord President, Lord Boyd of Duncansby, Lord Tyre

Agents

For the pursuer and reclaimer (Dr Margaret Kirkwood)

Blacklocks Solicitors

For the defenders and respondents (Thelem Assurances)

Brodies LLP

Case description

The pursuer was knocked down by a motorist whilst she was on holiday in France in 2015. She was injured, and raised an action for compensation in the Court of Session against the motorist’s insurers.

The pursuer instructed English solicitors, Irwin Mitchell, Birmingham to conduct the litigation. Irwin Mitchell engaged the services of Blacklocks Solicitors, Edinburgh to assist them, as local agents.

The litigation settled on 4 March 2020. The defenders paid an agreed level of compensation to the pursuer, and were ordered by the court to pay her legal expenses, as taxed, on a party and party basis.

Blacklocks lodged an account with the Auditor of Court. They sought expenses in the amount of £260,629.11. That amount comprised their own fees of £8671.57 plus VAT of £1734.29, and outlays of £250,223.35. Of these outlays, £250,177.35 was for Irwin Mitchell’s fees. This had been prepared on the English equivalent of the Scottish "agent and client" basis, meaning that the level sought was higher than would be allowed on a party and party basis.

The defenders objected to the account. They asked the Auditor to disallow the outlays in respect of Irwin Mitchell’s fees. Following a diet of taxation (a hearing before the Auditor) the Auditor determined that, it was not reasonable for the pursuer to have instructed foreign solicitors. Following a further diet of taxation, the Auditor issued his report allowing total sum of £136,783.20; made up of Blacklocks’ abated fees plus VAT and a number of outlays which Irwin Mitchell had incurred, such as counsels' fees.

The pursuer appealed the Auditor’s report to the court. The matter called before the Lord Ordinary for a hearing. The Lord Ordinary held that the Auditor’s decision was correct. The pursuer now reclaims (appeals) the Lord Ordinary’s decision. The First Division will hear the appeal on Friday 16 June 2023.