Sheriff refuses ‘equality of arms’ motion to sanction employment of counsel

Sheriff Douglas Kinloch at Livingston held that the so-called “equality of arms provision” in the Courts Reform (Scotland) Act 2014 did not mean that a case would automatically be certified as suitable for the instruction of counsel if one side instructed counsel and the other side chose to instruct counsel in response.

The sheriff gave his decision in a summary cause action by David Brown, who was seeking damages for whiplash type injuries following a road accident in which another driver ran into his vehicle.

The pursuer sued the other driver’s insurance company Aviva Insurance, which admitted that there had been a collision and that their insured had been negligent.

Damages had been agreed at £1,823.80 and therefore the proof proceeded only on the issue of causation; whether the pursuer was injured in the accident.

At the end of the proof, which lasted three days, the sheriff found in favour of the pursuer, and granted decree in his favour for the agreed sum.

Both parties were represented by counsel, and counsel for the pursuer also sought to have the action certified as suitable for the appointment of junior counsel, but counsel for the defenders opposed this motion.

Under section 108 of the Courts Reform (Scotland) Act 2014 the court “must” sanction the employment of counsel if it considered it “reasonable”, having regard to the likely “difficulty or complexity of the proceedings”, the “importance or value of any claim”, and “the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel”.

The pursuer argued that while the proceedings had not been difficult or complex, the importance of the proceedings to him and the desirability of ensuring that the defenders did not gain an unfair advantage “justified” sanction being granted.

Counsel for the pursuer submitted that as the defenders did not accept that the pursuer had been injured in the road traffic accident, it was possible that an adverse credibility finding could have been made against him if his evidence had not been accepted, and that as a serving police officer such a credibility finding could have had “serious repercussions” for him, and could conceivably have affected his career.

The court was told that a few days before the proof the pursuer’s instructing agents had been advised by the defenders’ agents that they had instructed counsel for the proof and the pursuer’s agents therefore felt that it was appropriate also for the pursuer to be represented by counsel in order to ensure “equality of arms”.

However, counsel for the defenders submitted that in a straightforward case such as this even if the defenders wished, for their own reasons, to instruct counsel, that had not given them any unfair advantage.

Sheriff Kinloch accepted that the case was of “considerable importance” to the pursuer, but added that that was not why he or his agents chose to instruct counsel.

He said: “As the pursuer’s counsel candidly, and properly, admitted, they chose to instruct counsel because the defenders had advised them shortly before the proof that they had instructed counsel to conduct the proof on their behalf. Until that point, as I understood it, the pursuer was content to be represented by a solicitor. I therefore do not find that the importance of the proceedings to the pursuer is sufficient to justify certifying the case as suitable for counsel.”

In relation to the equality of arms provision which ensures that a party does not gain an unfair advantage by instructing counsel, the sheriff observed that s.108 did not mean that if one side instructed counsel and the other side chose to instruct counsel in response, the case would automatically be certified as suitable for the instruction of counsel.

In a written note, Sheriff Kinloch said: “The reason for this is that the court is directed to ensure only that no party gains an unfair advantage by virtue of the employment of counsel. While a party with sufficient resources in a complicated and specialist case might gain an unfair advantage by employing specialist counsel where the other side could not do so, that was not the position in the present case.

“This was, as was accepted, an entirely straightforward summary cause action. It was accepted that a collision had taken place. It was accepted that the other driver was at fault. Damages had been agreed, at modest level.

“It is therefore a case that to my mind could have been conducted with relative ease even by an inexperienced solicitor. Although, for their own reasons, the defenders chose to instruct an experienced Counsel, that in my view is not something which would have given them an unfair advantage.

“I think that while some solicitors might not have relished having an experienced counsel appearing against them, nevertheless it would have been possible for a solicitor to have conducted a straightforward case like this one on behalf of the pursuer on an equal basis. In the event, the agents for the pursuer instructed counsel, but I am not persuaded that it is appropriate for the defenders, as the losing party, to pay for the expense of this.”

He therefore refused to certify the case as suitable for the employment of junior counsel.