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Decision to Refuse Sanction for Counsel in Low Value Personal Injury Case Overturned by Sheriff Appeal Court

The Sheriff Appeal Court has overturned a decision to refuse sanction for the employment of counsel in a low value personal injury case.

The pursuer raised a claim for damages at Livingston Sheriff Court for whiplash injuries he sustained in a road traffic accident. He was successful but Sheriff Kinloch refused to sanction the employment of junior counsel. The pursuer appealed and the decision has now been overturned by Appeal Sheriff Andrew Cubie.

Under section 108 of the Courts Reform (Scotland) Act 2014, the court must sanction the employment of counsel if it considers 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’s solicitors instructed junior counsel to represent him at the proof hearing, after the defenders’ agents advised a few days before the hearing that they had instructed experienced counsel. At the proof, Sheriff Kinloch found the pursuer to be a reliable and credible witness and awarded him damages. However, he did not accept that it was reasonable to have instructed counsel. The pursuer was a serving police officer and his counsel submitted that the defenders did not accept that he had been injured and were therefore attacking his credibility. He went on to argue that an adverse finding could have had serious implications for the pursuer and his career. 

In the decision from the Sheriff Appeal Court, Sheriff Cubie held that the sheriff erred in failing to give adequate weight to the importance of the proceedings to the pursuer. He held that it was reasonable for the pursuer’s agents to have instructed counsel.

This decision is good news for pursuers and their solicitors and will help to ensure equality of arms for those pursuing similar cases.

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