Since the creation of the All-Scotland Sheriff Personal Injury Court (ASPIC) it seems that one of the most hotly contested subjects between parties has been the question of Sanction for Counsel, and when it should (or should not) be granted. Before its creation, Lord Gill recognised that in ASPIC there would be many important and complex sheriff court litigations where the services of counsel should be available to either side and section 108 of the Courts Reform (Scotland) Act 2014 ‘the Act’ imposes a positive duty on the court to sanction the employment of counsel if it considers that, in all the circumstances, it is reasonable to do so.
So then comes the question, when is it reasonable?
There has been a consistent approach by the Sheriffs presiding over opposed motions that each case must be determined on its own facts and circumstances. Although previous decisions can be referred to for the principles to be applied and to try to assess what a Sheriff's approach might be, the Act itself sets out the factors that need to be satisfied in each case where the sanction is sought and so that should be the starting point for the preparation of every motion.
Section 108 (3) of the Act sets out the bases for sanction of counsel to which the Court must have regard when considering the motion.
These are:
- the difficulty or complexity, or likely difficulty or complexity, of the proceedings,
- the importance or value of any claim in the proceedings, and
- the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.
Whilst a detailed analysis of each of these considerations is not needed for this blog, it is worth noting a recent decision from Sheriff Liddle (Carlo Capuano –v- William Gannon PN1959-18) which confirmed that ‘counsel’ includes instruction of a solicitor advocate and if a solicitor is qualified as a solicitor-advocate they cannot simply step away from that experience. Where a party is represented by a solicitor-advocate, that party benefits from the experience and skill that representative has acquired from holding such a position.
Decisions from opposed motion hearings have shown that a Sheriff does not need to be persuaded on one consideration alone, but can decide that taking all points together sanction is merited.
Drummond Miller recently dealt with an opposed motion in a clinical negligence case for sanction for Counsel heard by Sheriff McGowan. Sheriff McGowan provided helpful comments in reaching his conclusion that sanctions should be granted. Although making clear that he was not setting down a hard and fast rule, he noted that clinical negligence actions tend to be highly specialised cases and that this in itself is a valid starting point for considering the question of sanction for counsel. The court may also have consideration of often the particular type of claim is seen.