When a case settles for a low amount in the new All-Scotland Personal Injury Court, how will the court apply the new test for sanction for counsel?

The case

V (as parent and guardian of J (a Child)) v M&D Leisure Limited [2016] SC EDIN 22

The issue

The All Scotland Personal Injury Court is still in its infancy, and there has been some speculation as to how the court will deal with sanction for counsel now that there is no automatic right in cases below £100,000.

This recent decision involving a claim brought on behalf of a child which settled within the adjustment period gives some indication as to the approach the court may take.

The facts

J, a 10 year old boy was playing crazy golf at M&D’s theme park at Strathclyde Country Park.  As he was moving from one hole to another, he had to use some wooden steps.  When he did so, he slipped, and his chin came into contact with the end of the putter he had been given.  The rubber had been worn away, and as a result, he sustained a nasty laceration to his chin.

He said that the slip was due to the steps being wet, and the laceration was due to the poor state of the rubber grip on the club.

Liability was denied by M&D, but before the end of the adjustment period, a tender for £12,500 was lodged, and accepted.  In accepting the tender, V moved for sanction for counsel, who had consulted with J, prepared adjustments and a valuation.  This was opposed by M&D, who argued that sanction for counsel should not be granted.

V argued that the case was more complicated than normal as it proceeded under both common law and the Occupier’s Liability (Scotland) Act 1960, and involved complex issues of both breach of duty and causation.  There was not just one causative breach of duty but an interaction between two such breaches.

It was also argued that it the case was very important to J, having been left with a permanent scar, and that while £12,500 wasn’t a large amount in the grand scheme of personal injury claims, it was to a boy of J’s age.

Finally, consulting with and taking the evidence of a boy of J’s age merited the employment of counsel.

V also pointed out that the wording of section 108 of the Courts Reform (Scotland) Act 2014 was such that the sheriff’s discretion was limited to whether employment of counsel was reasonable in all the circumstances; if it was, then sanction must be granted.

Against this, M&D argued that this was no more than a standard personal injuries action.  The legal points were not complicated, and the firm acting for J was an experienced personal injury firm.  As to importance, every case is important to each pursuer, but this one was no more important to J than any other case.  And even if taking evidence of a child may, in some circumstances, require more skill than from a normal adult witness, there had in any event been no need to instruct counsel at such an early stage.

The decision

The court found it was reasonable in all the circumstances to have instructed counsel, and granted sanction.

Sheriff Braid did however hold that case was no more complicated, important or valuable to J than any other standard case.  The issues of law were of no more than moderate complexity and could be dealt with by a competent solicitor.  Nor was the case of a particularly high value, and he found that the case was of no greater importance to J than to any other pursuer.  It was not, for example, a case in which damages were required so that he could be cared for throughout the rest of his life.

However, the fact that J was a child did make a difference.  More skill would be required to take his evidence.  It was reasonable to instruct counsel for that purpose, and it would not have been reasonable to wait until just before the proof for counsel to be instructed.

Having found that it was reasonable, in all the circumstances, then in terms of the wording of section 108 of the 2014 Act, he was bound to grant sanction.

Our view

While the decision is a blow for defenders, the effects of the case are limited.  In large part, Sheriff Braid agreed with the submissions of M&D that such a case would not normally merit employment of counsel; the only reason it was allowed here was that the pursuer was a young child.

While the wording of section 108 does limit the court’s discretion in considering sanction for counsel, it is still open in each individual case to argue why it was not reasonable for counsel to be instructed.