Sheriff Appeal Court upholds PI sheriff’s decision to sanction employment of counsel

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Sheriff Principal A Dunlop QC, heard that the pursuer Jack Cumming was employed by the appellant SSE PLC as a craftsman electrician between June 1988 and December 2014, throughout which he delivered and installed domestic appliances, storage heaters and electricity meters.

The action was raised in the All-Scotland Sheriff Personal Injury Court, based at Edinburgh Sheriff Court, with both liability and quantum disputed.

The defences were skeletal and made no admissions, but they did make calls on the pursuer in respect of his employment history; detailed nature of his work with the appellant, including the identities of supervisors and colleagues with whom he worked together with the quantities of asbestos dust given off.

The pursuer’s two craves were firstly for £50,000 being full and final damages in respect of solatium and any future risks caused by his exposure to asbestos; and secondly he sought provisional damages of £25,000, reserving the right to apply to the court for further damages in terms of section 12 of the Administration of Justice Act 1982 should he develop or be diagnosed with mesothelioma or some other asbestos related condition.

Ultimately, the cause settled prior to proof when the pursuer accepted the sum of £9,175 tendered in full and final settlement.

Counsel appeared for the pursuer to move a motion for decree in terms of the Minute of Tender and Acceptance seeking inter alia certification of the cause as suitable for the employment of junior counsel, in terms of section 108 of the Courts Reform (Scotland) Act 2014.

A solicitor-advocate appeared for the appellant to oppose certification and counsel had been instructed after defences had been lodged at the stage of adjustment of the pleadings.

Counsel had consulted with the pursuer, drafted adjustments and a specification of documents. Subsequently, counsel advised the pursuer on the tender.

The sheriff granted the pursuer’s motion to certify the cause as suitable for the employment of counsel for the pursuer, but the defender appealed that decision.

Counsel for the appellant accepted that the sheriff had an element of discretion to determine whether it was “reasonable” to sanction the employment of counsel, but essentially the submission was that the sheriff’s decision was “plainly wrong”.

The factors which the sheriff must have regard to in coming to a decision are highlighted in section 108(3) and it was argued, in short, that there were “no difficulties or complexities” arising in these proceedings and there was nothing about the proceedings which render them of “particular importance”.

However, counsel for the respondent argued that there was “no error of law” disclosed in the grounds of appeal or in the oral argument before the appeal court.

It was not disputed that the sheriff identified and applied the correct test, namely that set out in section 108 of the 2014 Act, which requires the court to grant sanction if in all the circumstances it is reasonable to do so, and the sheriff patently had regard to the factors set out in section 108(3)(a).

Delivering the opinion of the court, Sheriff Principal Stephen said: “Whether or not to sanction the employment of counsel remains quintessentially within the judgement or discretion of the sheriff who is likely to be better placed than an appellate court to come to a judgement as to the nature of the cause; any difficulty or complexity arising; and its importance.

“Absent misdirection it is not open to the appellate court to interfere and reach its own decision as to sanction. The appeal court may interfere with the conclusion reached by the sheriff if it is one which in the circumstances is plainly wrong.

“We agree that the sheriff addressed herself to the correct test in her analysis of section 108. The sheriff clearly recognised that the factors mentioned in section 108(3)(a) were not only relevant but factors which she required to give particular consideration to.

“In reaching her conclusion as to the reasonableness of sanctioning the employment of counsel the sheriff required to consider whether the proceedings merited the employment of counsel (section 108 (3)(a)). The sheriff had particular regard to the difficulty or complexity of the proceedings (and indeed the likely difficulty or complexity).

“The sheriff gave careful consideration to the eight points advanced before her by the pursuer and preferred these submissions to those advanced on behalf of the defender… We see no basis upon which the sheriff can be criticised for concluding that the difficulty and complexity were such as to merit the employment of counsel.”

The appeal sheriffs added: “Section 108 requires the court to consider whether it is reasonable to sanction the employment of counsel in all the circumstances of the case. If the court considers it reasonable it must grant sanction. Accordingly, the court has discretion to consider each case on its own merits…

“However, we do recognise that the statutory compulsitor requiring the court to grant sanction, if it is reasonable, (section 108(2)) is curiously otiose… It may simply be emphasis signifying the intention that counsel would play a real and meaningful role in the work of the sheriff court in its new and expanded jurisdiction.”