Personal Injury Court issues guidance on motions for sanction for employment of counsel

The All-Scotland Sheriff Personal Injury Court has issued a judgment to give some guidance on motions for certification of skilled persons and sanction for the employment of counsel made under new court rules introduced in 2019.

Sheriff Kenneth McGowan said the terms of motions should reflect “as closely as possible” the wording of the rule or law under which the application is being made in order to “eliminate ambiguity”.

Taxation Rules

The sheriff issued the note in a clinical negligence action brought by Lewis Finlay against Borders Health Board, after an unopposed motion was lodged under Chapter 5 of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 to remit the action to Chapter 36A; grant sanction for the employment of junior counsel “to assist with the conduct of the entire cause as a whole”; and to “retrospectively sanction the employment of junior counsel for the work already undertaken” in drafting the initial writ, in terms of section 4.3 and and 5.1(c) of the 2019 Rules.

The motion also sought certification of certain skilled persons “for the entire conduct of the proceedings” and asked the court to “retrospectively” certify one of those expert witness for “work already done” to allow the proceedings to be raised, in terms of section 4.5 and 5.1(b) of the Rules.

In granting the motion, the sheriff made a number of observations about the meaning of the rules.

In his written note, Sheriff McGowan said: “First, they apply to all types of proceedings in the sheriff court except proceedings under Chapter 36 OCR; simple procedure cases; or proceedings in the Sheriff Appeal Court.

“Second, given the use of the phrases ‘proceedings, or a part of the proceedings’ in Rule 5.4(5) on the one hand and ‘particular work’ in Rule 5.4(6) on the other, these rules read together must mean that applications for sanction with retrospective effect cannot ever competently be made for proceedings or a part of them.

“Instead, sanction with retrospective effect can only be sought and obtained in relation to ‘particular work involved in the conduct of the proceedings’ which already been carried out.

“Third, it is implicit in the foregoing that the particular work must be specified.

“Fourth, where an application to retrospectively sanction particular work involved in the conduct of the proceedings already carried out is made as suitable for the employment of counsel, cause must be shown for that not being done before the work was carried out.”

Sanction 

In relation to the motion before the court, the sheriff observed that, as a matter of generality, where an application of any kind is made to the court under legislation or rules, “it is best if the language used mirrors as closely as practicable the wording of the law or rule under which the application is made”, as this “helps to eliminate ambiguity”.

The Act of Sederunt contains rules, not sections.

He continued: “Phrases like ‘…to grant sanction for the employment of junior counsel to assist with the conduct of the entire cause as a whole…’ are both otiose and inaccurate.

“What may be sanctioned as suitable for the employment of counsel is (i) the proceedings; and/or (ii) part of the proceedings; and/or (iii) particular work involved in the conduct of the proceedings. The court does not ‘grant sanction for the employment of counsel’.

“The ‘conduct of the entire case as whole’ presumably means, and could be substituted with, ‘the proceedings’.”

He added that the part of the motion seeking retrospective sanction for “work already undertaken” in drafting the initial writ was “unnecessary”.

The sheriff explained: “This case is (presently) subject to Chapter 36. Part of the motion before me seeks a remit to Chapter 36A. But until that motion is granted and takes effect – which does not happen until the interlocutor is signed by me – the case remains subject to Chapter 36. That being so, it is one of the three categories of case where sanction of the proceedings has both retrospective and prospective effect.

“I acknowledge that there might be a concern as to whether the sanction granted by me flies off once the case is remitted to Chapter 36A. But it is clear that Rules 5.4(5) and (6) only have effect when an application is made in proceedings other than Chapter 36 and SAC proceedings and simple procedure cases: Rule 5.4(4). So, where an application to sanction ‘the proceedings’ as suitable for employment of counsel is made and granted, there will be no need for another application to be made at a later stage i.e. once the remit to Chapter 36A has been effected.”

Certification

On the issue of certification, the 2019 Rules provide that no charges to a skilled persons are to be allowed by the Auditor on taxation of an account unless the person has been certified as skilled, meaning that, subject to two exceptions, there is a general prohibition on the Auditor allowing as a recoverable outlay charges to skilled witnesses pre-dating certification.

Sheriff McGowan said: “The first is if certification is granted in one of the three types specified, namely proceedings under Chapter 43 in the Court of Session, Chapter 36 in the Sheriff Court; or simple procedure cases: Rule 4.5(4)(a). The second is if the sheriff has determined in accordance with Rule 5.3(5) that the certification has effect for the purposes of work done, or expenses incurred, before the date of certification: Rule 4.5(4)(b).

“Before a person can be certified as skilled for the purpose of Rule 4.5, the court must be satisfied that he or she is a skilled person and that it is, or was, reasonable and proportionate that he or she should be employed: Rule 5.3(1) and (2).

“Where a motion for certification is made in cases other than those specified, Rule 5.3(5) applies: Rule 5.3(4)…Thus, the general rule is that an application for certification with retrospective effect has to be justified.”

In respect of the present motion for certification, the sheriff again made the observation where an application is made to the court under legislation or rules, “the language used should follow closely the wording of the law or rule under which the application is made”.

Phrases like ‘…for the entire conduct of these proceedings…’ are unnecessary and inaccurate”, he said.

“The order made by the court is that a person is certified as skilled (with or without retrospective effect – see above). It is then a matter for the Auditor to decide to what extent charges for work done or expenses incurred by the skilled person are recoverable.”

Similarly, the part of the motion for retrospective certification was unnecessary for the same reasons as those set out in relation to sanction, as granting the motion had retrospective effect.