Sitting in the All Scotland Sheriff Court at Edinburgh on 17th March 2016, Sheriff P J Braid considered a contested motion for sanction of employment of junior counsel, for the purpose of computing the expenses payable by a defender following upon settlement of a personal injuries action. The injured party was a boy aged 11. The ratio of Sheriff Braid’s decision would appear to be equally relevant to some adults with intellectual disabilities.
The boy slipped on wooden steps at a “crazy golf” course. He was holding a club. Part of the rubber grip was missing from the top of the club, exposing the metal shaft, which had ragged sharp edges. He struck his face against this, suffering a nasty injury and permanent disfigurement. He was very sensitive about the disfigurement.
The action was raised in October 2015. In their defences, the defenders contested liability. On 29th December 2015 the pursuers’ agents instructed junior counsel, who met the boy at consultation and then drafted substantial adjustments, a specification for recovery of documents, and a statement of valuation of the claim. On 21st January 2016 a tender was lodged. Following a further consultation and negotiation, the action was settled at a somewhat higher sum, plus expenses. The relevant provisions regarding sanction for counsel in the sheriff court (and Sheriff Appeal Court) are now contained in section 108 of the Courts Reform (Scotland) Act 2014. That section contains no explicit reference to the age or vulnerability of the party seeking such sanction. The relevant provisions of section 108 are these:
(2) The court must sanction the employment of counsel if the court considers, in all the circumstances of the case, that it is reasonable to do so.
(3) In considering that matter, the court must have regard to – (a) whether the proceedings are such as to merit the employment of counsel, having particular regard to – (i) the difficulty or complexity, or likely difficulty or complexity, of the proceedings, (ii) the importance or value of any claim in the proceedings, and (b) the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.
(4) The court may have regard to such other matters as it considers appropriate.
Sheriff Braid concluded that the proceedings were not especially difficult or complex, and had no greater importance to the pursuer than to any other pursuer. There was no suggestion that an unfair advantage was gained by the employment of counsel. However, as liability was disputed it was necessary for the pursuer to approach the matter on the assumption that the case would go to proof on both liability and quantum. The boy would require to give evidence. Given the permanent and obvious nature of his injury, special skill would be required in taking his evidence effectively. It was therefore reasonable to have any proof conducted by counsel. Moreover, it would have been unreasonable to have introduced into the case, at a late stage,
counsel whom the boy had not previously met. It was therefore reasonable to sanction the employment of counsel for all the work which counsel had been instructed to do, at the time when he had been instructed to do it. The motion for employment of counsel was granted.
Experience of acting for people with many categories of intellectual disability indicates that it is of vital importance that there be consistency as to the person acting, gradually building trust and confidence. That applies even where there is no expectation that the person will have to undergo the stress of examination and cross- examination as a witness in court proceedings. It is all the more important where there is indeed a prospect, or even a risk, of the person having to give evidence in court. One would suggest that there could be a question as to whether a solicitor was failing to give an adequate professional service, if the solicitor did not take reasonable steps to ensure the likelihood that the person ultimately conducting such proceedings should – barring the unforeseen – be the person who builds up that relationship of trust over the course of the matter. In such cases, one would suggest that if it was anticipated that it would be appropriate to instruct counsel for any proof, then counsel should be instructed, and should be present at relevant meetings with the person, at latest at the point of proceedings where the possibility of the person requiring to give evidence, failing earlier resolution, is foreseeable. There will be cases where it will be appropriate for intended counsel to meet a vulnerable pursuer before proceedings are commenced, to help counsel assess the ability of a vulnerable pursuer to give evidence to the standard likely to be required.