Trainee lawyer who claimed credibility and career were at stake refused sanction for counsel in personal injury action

A sheriff in the All-Scotland Personal Injury Court refused the motion after ruling that the case did not merit the employment of counsel and that in any event the court would not have been determining the binary question of whether the would-be lawyer was being “honest” or a “liar”.

’Fit and proper person’

Sheriff Kenneth McGowan heard that the pursuer Neil Robertson sued the defender’s insurer Esure for £17,000 following a road traffic accident, but the defender’s position was that it was a “low impact collision” - the import of which was that the pursuer was lying.

The case ultimately settled for £5,000 but the pursuer had instructed counsel at the adjustment stage for a consultation.

It was argued that it was an “inherent part” of the structure of the Scottish legal profession that there was a potential advantage to be gained by employing counsel, who were “specialist pleaders”.

The pursuer’s position was that, if the case went ahead, there was a risk of the court making “adverse comments” about his credibility and due course, the question as to whether the pursuer was a “fit and proper person” to be admitted as a solicitor was going to be “crucial” to him.

It was also possible that there may have been allegations of attempted fraud in that it may have been suggested that the pursuer was making an “exaggerated claim” for repairs to his vehicle.

There was a lot of competition for post-training places, meaning that in this case the “stakes were higher” than for other pursuers not similarly affected.

‘Straightforward claim’

But the defender submitted that this was a “straightforward claim” which was “well within the capabilities of the pursuer’s agents, who were a firm of specialists in road traffic cases, and that the presence of a factual dispute in a case and the importance of a case to the particular pursuer were not necessarily factors which justified the employment of counsel.

In the alternative, if the pursuer’s motion was to be granted to any extent, it was argued that it was “unreasonable” to instruct counsel at the adjustment stage.

Counsel’s fees in this case exceeded £2,500, which was “disproportionate; and if it was appropriate to use counsel at all, sanction should be restricted to conducting the pre-trial meeting.

Further, it was argued that all pursuers potentially faced challenges to their credibility and the fact that the pursuer was a first year trainee did not alter the position; his future career prospects would have been more likely to depend on his performance during his traineeship rather than anything arising from the result of this case.

‘Objective reasonableness’

Refusing the motion, the sheriff said he was “unable to detect any suggestion in the defender’s position that the pursuer was was lying or exaggerating”.

In a written note, Sheriff McGowan said: “The task before me is to decide whether to grant sanction for the employment of counsel if I consider, in all the circumstances of the case, that it is reasonable to do so: section 108(2),Courts Reform (Scotland) Act, 2014. In carrying out that exercise I must approach it from the point of view of ‘objective reasonableness’.

“The proposition here was that the case was of particular importance to the pursuer because of the potential impact on him of a possible adverse finding as to his credibility, if the matter were to proceed to proof and judgement. I accept that in principle that is a factor which could demonstrate that the proceedings were such as to merit the employment of counsel and hence be relevant in satisfying the test of ‘objective reasonableness’.

“But there are two points to be made at the outset. First, whether such a circumstance will lead to the test of ‘objective reasonableness’ being satisfied will depend on (i) the particulars of the case in relation to the nature of the decision that might be made by the court as to credibility and its potential impact on the party affected; and (ii) the weight to be afforded to that factor, taking account of all the other circumstances of the case.”

He added: “It appears to me that it is in fact unlikely that a particularly acute decision about the pursuer’s credibility would have arisen for determination if the matter proceeded to proof. And even if such a decision on credibility had been required, I am not satisfied that it is likely that the court would have been in the position of having to adjudicate on the binary question ‘honest’ or ‘a liar’.

“Even if I am incorrect in my view that the issue of credibility would not arise sharply in this case, in my opinion, the question as to how important that made the case, and whether that level of importance was sufficient to merit the employment of counsel depends on the other circumstances. By that I mean that the issue of credibility does not arise in a vacuum. It depends on, for example, what other evidence is available.

“In the circumstances, I am not satisfied that, taking account of importance, the proceedings were such as to merit the employment of counsel. Accordingly, it cannot be a circumstance which goes to satisfy the test of ‘objective reasonableness’.”