V (AS PARENT AND GUARDIAN OF J (A CHILD)) AGAINST M&D (LEISURE) LIMITED
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 22
PN66/15
JUDGMENT OF SHERIFF PETER J BRAID
In the cause
V (AS PARENT AND GUARDIAN OF J (A CHILD)
Pursuer;
Against
M & D (LEISURE) LIMITED,
Strathclyde Country Park, Hamilton Road, Motherwell, ML1 3RT
Defender:
Edinburgh, 17 March 2016
Note
Introduction
[1] This personal injuries action was raised in Edinburgh Sheriff Court, invoking its all‑Scotland jurisdiction. The action was raised by the pursuer as parent and guardian of his son, J, then aged 11, and sought damages of £25,000 in respect of an accident to J on 12 October 2014. The action having settled, it called before me on 25 February 2016 on the pursuer’s motion under section 108 of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”) to certify the cause as suitable for the employment of junior counsel, which motion was opposed by the defenders. Mr Middleton, advocate, appeared for the pursuer; Mr Rinaldi, solicitor, for the defenders.
Section 108
[2] Section 108 of the 2014 Act is in the following terms:
“Sanction for counsel in the sheriff court and 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.
(5) References in this section to proceedings include references to any part or aspect of the proceedings.
(6) In this section—
“counsel” means—
(a) an advocate,
(b) a solicitor having a right of audience in the Court of Session under section 25A of the Solicitors (Scotland) Act 1980,
“court”, in relation to proceedings in the sheriff court, means the sheriff,
“relevant expenses rule” means, in relation to any proceedings mentioned in subsection (1), any provision of an act of sederunt requiring, or having the effect of requiring, that the employment of counsel by a party for the purposes of the proceedings be sanctioned by the court before the fees of counsel are allowable as expenses that may be awarded to the party.
(7) This section is subject to an act of sederunt under section 104(1) or 106(1).”
The accident
[3] The circumstances of the accident are described by the pursuer in his averments at paragraph 3 of his Statement of Claim as follows:
“On or around 12 October 2014, at or around 1600 hours, J attended the defenders’ theme park premises, known as M&Ds, at Strathclyde Country Park, Motherwell. At that time, J was 10 years old and he attended along with his mother…, brother and a friend. They went to play ‘crazy golf’ at an area of the premises known as ‘Devil’s Island’. J’s mother paid a member of the defenders’ staff at a kiosk at the entrance to the crazy golf course and the group were each issued with a putter-style golf club and a golf ball. At that time, J’s mother, C, was not aware that about an inch of the rubber grip was missing from the top of the club, thereby exposing the open end of the hollow metal shaft, which had ragged sharp edges. The ‘crazy golf’ course was comprised of a number of holes, the exits from some of which were by means of a set of wooden steps. No anti-slip materials had been applied thereto. It had been raining earlier that day and the steps were slippery. At about 1645 hours, as J was descending a flight of three steps, carrying the golf club in his hand, he slipped on the steps and fell. As he did so, the sharp, exposed metal end of the golf club pierced the left side of his chin. During the summer of 2013, one of C’s friends…had complained to the defenders’ kiosk attendant that the wooden steps on the ‘crazy golf’ course were slippery. Further, the defenders are believed to have risk assessed the ‘crazy golf’ course on 7 April 2014. Said assessment highlighted the need for regular checks and cleaning of recognised walkways and the drying and/or cordoning off of wet and slippery areas. Said assessment did not, however, include the maintenance or condition of the golf clubs.”
[4] The defenders’ response to that was to admit that J had attended on the day in question, that crazy golf was operated by the defenders within their premises, that he had taken part in crazy golf with a club provided by the defenders’ employee and that the crazy golf course featured wooden steps. Beyond that, the pursuer’s averments were denied. It was averred by the defenders that it was a bright and sunny day on 12 October 2014, that the wooden steps were not wet and not slippery and that J was under a duty to take reasonable care for his own safety and in particular to use the golf club in an appropriate manner and in a way that it was designed to be used.
[5] The pursuer’s averments about J’s injury were, insofar as material for present purposes, in the following terms (after correcting obvious typographical errors):
“…J suffered a significant, L-shaped laceration on the left aspect of his chin, measuring about 5 cm in both directions, with a central oval abrasion. Following the accident, he bled profusely and was distressed…He was…taken by ambulance to…hospital, where he was triaged and his wounds were cleaned… debrided and sutured under general anaesthetic. His stitches were removed on 21 October 2014 but he thereafter required to attend the plastic surgery outpatient clinic …until about November 2015…His mouth was bruised, tender and painful, which affected his sleep and his ability to eat and speak. He was not allowed to play any sport or to take part in any physical activity for about 6 weeks. J has a permanent facial disfigurement, which will remain noticeable at conversational distances. He is aware of people looking at his scar, which is more visible in cold weather. He is aware of a slightly altered sensation following the line of the scar. He may require to undergo further corrective laser surgery thereon…”
[6] In statement 6, the pursuer averred that his claim was based on the defenders’ fault and negligence at common law and their breach of statutory duty in terms of section 2(1) of the Occupiers’ Liability (Scotland) Act 1960. There then followed a series of averments directed towards the defenders’ duty of care in relation, first, to the condition of the steps and, second, to the maintenance of the golf club. A separate case was pled against the kiosk attendant, who, it was averred, had a duty not to issue clubs which were in a dangerous condition. It was averred that both the premises and the golf club were dangerous, defective, unsafe and unsuitable for use, especially by a young child such as J. In response to that, the defenders admitted that certain duties were incumbent upon them under explanation that these duties had been fulfilled. They went on to make averments about contributory negligence on the part of J, albeit no specification was given of how he had failed to take reasonable care for his own safety, or of any inappropriate use of the golf club.
Procedural history
[7] It was common ground that a claim had been intimated by the pursuer on 2 February 2015 and that following investigation the defenders’ insurers intimated that liability was not accepted, on the basis that the steps were not slippery. The action was raised in October 2015 and, following the lodging of defences, a timetable was issued in the usual way allocating the proof for 14 June 2016. On 29 December 2015, the pursuer’s agents instructed junior counsel to consult, adjust and value the claim, which resulted in a consultation in Glasgow, the drafting by counsel of substantial adjustments, a specification for the recovery of documents and a statement of valuation of the claim (in the sum of £19,118). On 21 January 2016, a tender was lodged in the sum of £10,000 plus expenses and following a further consultation and sundry negotiations, the action settled in the sum of £12,500 plus expenses.
Submissions for the pursuer
[8] Against all of that background, counsel for the pursuer submitted that the section 108 test was met. In essence the test was one of reasonableness. Consideration of whether to sanction the employment of counsel was a discretionary matter but if reasonable so to do, the court must grant sanction. In determining whether it was reasonable to employ counsel, the court must have regard to the factors specified in subsections (3) and (4). In the context of the present case, these factors were as follows:
Difficulty or complexity, or likely difficulty or complexity, of the proceedings
The following matters were relevant:
(a) Even after the claim had been investigated, liability was denied and that remained the defenders’ position throughout.
(b) The case was prosecuted at common law and under the 1960 Act. That involved complex issues of both breach of duty and causation. There was not just one causative breach of duty but an interaction between two such breaches – namely the inspection, risk assessment, maintenance and condition of the premises and the same in relation to the golf club. For the pursuer to succeed at proof, there would have been a need to establish both. Without the slip, there would have been no means by which the golf club would have come into contact with J’s face; without the exposed end of the golf club, it would probably not have caused the injuries that it did.
(c) J’s own conduct had been called into question. There might have been a need for a debate regarding the unspecific reference to appropriate use of the golf club and in addition the court may have required to consider the difficult issue of the appropriate standard of care to expect of a ten-year old.
(d) In terms of “likely” complexity, while not pled by the date of settlement, the supervisory conduct of J’s mother may have been called into question.
Importance or value
The following factors were relevant under this heading:
(a) J was still very young. He had been extremely traumatised at the time and his injuries were at the time very cosmetically disfiguring.
(b) Notwithstanding J’s cosmetic surgery, his scarring would be permanent and noticeable at conversational distances. Not only was that averred, but it was supported by a medical report lodged by the pursuer.
(c) These were matters that were very important to a young boy. While he was coping well at the moment, he was very aware of people looking at him and it remained to be seen how he would cope as he gets older.
(d) The settlement at £12,500 was at full value, falling squarely within the Judicial College Guidelines (13th Edition) bracket for “Significant Scarring” (namely, £7620 to £15,020).
(e) While not a very valuable claim in comparison with many others, £12,500 was a very large sum of money for a boy of J’s age.
Such other matters as the court considers appropriate
The following factors were relevant under this heading:
(a) Consulting with a child of J’s age, and the need effectively to take his evidence at proof merited the employment of counsel.
(b) In addition, J had two very concerned parents who had to be reassured and advised.
(c) Counsel’s involvement served to focus the claim.
[9] Taking all these factors together, counsel submitted that it had been reasonable to instruct counsel and so sanction should be granted, even if none of the factors in isolation would have been sufficient.
Submissions for the defenders
[10] In opposing the pursuer’s motion, Mr Rinaldi submitted that the test in section 108 had not been met. Although that section was new, it attempted to codify the previous law, which was set out in Macphail, Sheriff Court Practice, 3rd Edition at paragraph 12.25. The test under the old law was not one of necessity, but simply whether it was appropriate to grant sanction having regard to the difficulty or complexity, or the importance or value of the claim.
Difficulty
This was a standard personal injuries action. There were no specialities relating to either duty or causation. There was no especial difficulty caused by the fact that the pursuer was a child, which was a fairly common occurrence. The only two issues in the case had been, were the steps slippery and was the club defective. Those questions were not especially difficult or complex, and the interplay between them was not complicated. The fact that liability had been disputed from the outset did not make the claim any more complex or difficult. The pursuer’s agents were experienced personal injury solicitors. No novel issues of law were involved.
Importance/value
While not denying that J had sustained a nasty injury, his claim was no more nor less important than that of any pursuer. It was not important enough to warrant the instruction of counsel. The claim had settled for a not-insignificant amount but in the grand scheme of things, the figure was not large. This was the very sort of claim the court reforms had in mind when personal injury procedure was, by and large, moved to the sheriff court.
Unfairness to either party?
While the pursuer did not rely upon this factor, Mr Rinaldi pointed out that the defenders had not themselves instructed counsel, and had had no intention to do so. The specification drafted by counsel had not been especially difficult and could have been drafted by an experienced personal injury pursuer.
Other appropriate matters
Mr Rinaldi was prepared to acknowledge that the need to take J’s evidence in a skilful and child-sensitive manner might have justified the employing of counsel for any proof that might have taken place; but that could not justify employing counsel at the stage where he was instructed here. The court should take into account that an experienced personal injuries solicitor should have been able to consult with the child and manage the expectations and needs of the parents.
Pursuer’s response
[11] In a brief response to Mr Rinaldi, counsel for the pursuer submitted that if it was accepted that it was reasonable to instruct counsel for the proof, because of J’s young age, it was all the more necessary to instruct counsel at an early stage, so that the child could meet the person who was to be representing him.
Discussion
[12] So far as I am aware, this is one of the first hearings in the All Scotland Personal Injury Court where section 108 has had to be considered by the court, certainly in the context of an opposed motion. It has of course long been possible for the sheriff court to sanction the employment of counsel, the test being one of appropriateness in all the circumstances, the most important considerations generally being the difficulty/complexity of the cause, and importance/value.
[13] Those factors are of course also reflected in the new test under section 108, which broadly follows the common law approach while at the same time being subtly different and somewhat labyrinthine in its approach to the reasoning required of the court. The court must now grant sanction if it considers in all the circumstances of the case that it is reasonable to do so, after having regard (and particular regard) to various factors, as discussed more fully below.
[14] As regards the reasonableness test, counsel for the pursuer presented his argument by asking whether the decision to instruct counsel had been a reasonable one for the pursuer to take, and Mr Rinalidi did not dissent from that approach. For my part, I consider that to be an unnecessary gloss on the statutory test, which is whether it “is” reasonable in all the circumstances of the case to sanction the employment of counsel. Expressed in that way, it is clear that the test is one of objective reasonableness considered at the time of the motion, having regard to the interests of the defender as well as those of the pursuer.
[15] In considering reasonableness, section 108(3) first requires the court to have regard to two factors. The first, by virtue of subsection (3)(a), is whether the proceedings are such as to merit the employment of counsel, and the second, by virtue of subsection (3)(b), is the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel (or, in other words, the desirability of ensuring “equality of arms”). In having regard to the first of these factors, the court must have “particular” regard to two further factors, namely the difficulty or complexity or likely difficulty or complexity of the proceedings and the importance or value of any claim in the proceedings. I was not addressed on whether there was any significance in the distinction between the expressions “have regard”and“having particular regard”, both of which phrases appear in subsection (3). However the point is probably of no consequence since subsection (4) makes clear (perhaps unnecessarily given the terms of subsection (2) which requires the court to consider all the circumstances of the case in any event) that the court may also have regard to such other matters as it considers appropriate.
[16] Applying that somewhat tortuous, and, dare one say, perhaps unnecessarily complicated, approach to the present case, I begin by considering the first matter to which I must have regard, which is whether the proceedings are such as to merit the employment of counsel. Having particular regard, as I must, first, to the difficulty or complexity of the proceedings, it seems to me that the proceedings were not especially difficult or complex. J’s claim was essentially that he slipped on a wet surface while holding a golf club with a sharp edge at the end of the shaft, with which he had been issued by the defender’s employee. The circumstances were admittedly unusual, possibly unique, but the sort of legal issues which arose in relation to duty, foreseeability and causation were at best of moderate complexity such that they could have been dealt with by a competent solicitor. So, while I am prepared to accept that the combination of the facts and legal issues arising therefrom was not entirely straightforward, particularly having regard to the suggestion by the defenders that J had not taken reasonable care for his own safety, I consider that the difficulty and complexity were not such as to merit the employment of counsel on their own. As regards “likely” complexity, counsel for the pursuer invited me to take into account a matter which might have been raised, but wasn’t, namely any possible breach of duty on the part of J’s mother. However, it seems to me that the reference to likely complexity is directed towards the situation where sanction is sought during the currency of a case before it has concluded, where the court may well require to take into account the likely future complexity of the case as well as any complexity which arises on the state of the pleadings as they currently stand. Any consideration of likely complexity is not apposite where, as here, the case has concluded and the actual complexity is known. Accordingly, I discount in my consideration of complexity any issues which were not in fact raised in the course of the action (and I am reinforced in my view that this is the correct approach by the reference in section 208(3)(a)(i) to the complexity of the proceedings, rather than to the complexity of issues which might have been raised in those proceedings but were not).
[17] As regards importance or value, only the first of these was founded on by counsel for the pursuer, it not being suggested that the value was especially high. Despite the age of the child, and the unpleasant nature of the injury, I am not persuaded that the claim had any greater importance to him than to any other pursuer. This is not a case, for example, where the damages were required so that the child could be cared for throughout the remainder of his life, or indeed where the damages will have any significant impact on his ability to cope with the injury which he sustained.
[18] The pursuer did not argue that the second factor to be taken into account in considering whether the proceedings merited the employment of counsel, namely the desirability of ensuring that no party gains an unfair advantage, had any application to the facts of the present case (although it is apparently still a factor to which I must have regard). It was pointed out by Mr Rinaldi that the defenders had not instructed counsel, but there was no suggestion that the pursuer had gained an unfair advantage by virtue of having employed counsel. That factor, while I have regard to it as I must, therefore carries no weight in the assessment of reasonableness.
[19] The requirement to have particular regard to two factors necessarily implies that other factors may also be taken into account, and the main additional factor relied upon by the pursuer was the age of the child and the difficulty in taking his evidence, should the matter have proceeded to proof. Here, the pursuer is on firmer ground. The defenders acknowledged that this could be a relevant consideration, but submitted that it did not justify the employment of counsel at the stage at which he was instructed here. Relevant factors are the age of the child, the nature of the injury and the fact that liability was disputed. That latter fact meant that, from the pursuer’s point of view, the case had to be approached on the assumption that it would require to go to proof on both liability and quantum. Consequently, J would require to give evidence about both the accident and his injury. Given the permanent and obvious nature of his injury, he might have found that difficult to speak about. Special measures could and no doubt would have been applied for and granted, but I proceed on the basis of the defender’s concession that special skill would have been required in taking J’s evidence effectively, and that accordingly it was reasonable to have any proof conducted by counsel. On that basis, and coupled with such difficulty and complexity as there was, I have come to the view that the proceedings were such as to merit the employment of counsel, although that conclusion is fairly finely balanced.
[20] Having so concluded, I may then, in terms of subsection (4), have regard to such other matters as I consider appropriate, before deciding whether or not it is reasonable to sanction the employment of counsel, albeit it is perhaps difficult to envisage circumstances where the court considered that the case merited the employment of counsel but that sanction would be unreasonable. In concluding that the proceedings merited counsel, I have already taken into account those factors which I consider to be relevant in assessing overall reasonableness. The only additional question, perhaps, is whether counsel was instructed too early, given that no proof had been fixed by the time the action settled. Whatever the position might be where the pursuer is an adult, it would have been unreasonable to expect J to have coped with the introduction into the case, at a late stage, of counsel whom he had not previously met. In those circumstances, I consider that it is reasonable to sanction the employment of counsel for all the work which he was instructed to do, at the time he was instructed to do it.
Decision
[21] Having performed the mental gymnastics required by section 108, for the reasons stated above I have come to the view that in all the circumstances of the case it is reasonable to sanction the employment of counsel. I have therefore granted sanction, as I am bound to do.