Sheriff Appeal Court overturns sheriff’s decision to refuse to grant sanction for counsel

The court held that the sheriff erred by failing to give sufficient weight to the “importance” of the case to the pursuer.

A question of principle

Appeal Sheriff Andrew Cubie heard that the pursuer and appellant David Brown sought to challenge the approach and decision of the sheriff at Livingston to refuse his motion for sanction for the employment of counsel, having found in his favour following a proof.

Both parties had instructed counsel, but when the sheriff came to consider the pursuer’s motion in terms of section 108 of the Courts Reform (Scotland) Act 2014, he refused to grant sanction after finding that the pursuer did not instruct counsel until the last minute and did so only on discovering that the defenders had done so.

On behalf of the appellant, Andrew Smith QC submitted that the appeal raised there a question of principle, as the provisions of s.108, which restated the existing practice in relation to sanction for counsel, had given rise to difficulties in identifying the appropriate approach.

The court was told that the sheriff’s decision at first instance had “considerable currency” around Scotland and was being referred to regularly in relation to opposed applications for sanction, thus there was interest in determining the general approach to be taken.

Mr Smith indicated that Faculty of Advocates had considered seeking to intervene in these proceedings, but were content on learning that the matter was to be dealt with by senior counsel on behalf of the pursuer.

Sheriff ‘misdirected’ himself

Further, it was said that the defenders had “conceded” the appeal and decided not to take part in the proceedings, although it was acknowledged that the appeal court would still require to be satisfied that the appeal should be granted and therefore there was more than an “academic interest” in the matter.

It was argued that the sheriff had “erred” because he had applied a subjective rather than an objective test and “misdirected himself” in relation to the test to be applied, which “vitiated” the decision made.

The appellant’s secondary position was that the sheriff had reached an “unreasonable or unwarranted decision” having regard to the material before him.

It was submitted that the the sheriff erred by relegating the importance of the matter to the pursuer because it had not been the trigger for the instructing of counsel, but the sheriff himself had acknowledged the “considerable importance” of the action and therefore the employment of counsel should have been sanctioned.

Allowing the appeal, the court observed that the sheriff had considered two factors, namely equality of arms and importance, but in relation to the issue of importance her erred by giving “inadequate weight” to a relevant factor.

‘Sheriff was in error’

In a written opinion, Appeal Sheriff Cubie said: “In connection with sanction for counsel, s.108 specifies some matters to which the sheriff must have regard (or particular regard), being 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, but reserving to the court that it may have regard to such other matters as it considers appropriate.

“In connection with the test for sanction, the sheriff must apply an objective test. The sheriff is not, in exercising this function, bound by the views of parties, even where a joint approach is taken; the question of sanction is peculiarly within the discretion of the sheriff.

“In my judgement, he took too narrow a view of the relevant factors by excluding, or at least marginalising, the issue of ‘importance’, a matter he recognises as ‘considerable’. The sheriff has rejected or minimised the importance of the matter to the pursuer, because that had not, of itself, triggered the instruction of counsel.

“But it was plainly a factor which informed the decision. The sheriff has been unduly influenced by the fact that the pursuer’s decision to instruct counsel was apparently provoked by the defenders’ decision to do so.”

He added: “Standing the error I have identified, the matter is at large for this court…I consider that in all the circumstances of the case, it was reasonable for the pursuer to employ counsel. That being the case, I must grant sanction.”