Sanction for Counsel in the National Personal Injury Court – an update

Two recent cases dealing with Sanction for Counsel in the National Personal Injury Court have provided Practitioners with further guidance as to how the Court will deal with such Motions.

With the introduction of the National Personal Injury Court in September 2015 came the ability to move for sanction for Counsel in cases proceeding in the Sheriff Court or Sheriff Appeal Court. Section 108 of the Courts Reform (Scotland) Act 2014 (the 2014 Act) provides that in cases proceeding before these Courts the Court must grant sanction for the employment of Counsel if the Court considers in all the circumstances of the case that it is reasonable to do so.

In the recent case of David McKenzie v Luke McCormack [2017] SC Edin 67 (published on 19 October 2017) Sheriff Mackie considered in detail whether the facts of that case merited sanction for Counsel against a background where recent decisions may have suggested to Practitioners that the bar for persuading a Court to grant sanction was not particularly high.

The case came before Sheriff Mackie following the extra-judicial settlement of a personal injury claim in respect of a road traffic accident in May 2015. The Pursuer enrolled a Motion seeking court approval for the parties’ Joint Minute to find the Defenders liable for expenses, for certification of skilled witnesses and sanction for the employment of Counsel.

In seeking to argue that employment of Counsel was reasonable, the Pursuer sought to rely on Section 108(3)(a)(i) and (ii) of the 2014 Act submitting firstly that the difference of opinion between parties’ medical witnesses rendered the issue of causation difficult and secondly that the Action was of particular importance to the Pursuer due to the fact that an inference could be drawn from the Defenders’ position that the Pursuer was fabricating the accident. There was also a submission that the Pursuer suffered particular anxiety over the possibility of surgery and that furthermore his advisers’ value of the claim was significantly higher than the settlement figure.

In making these submissions the Pursuer placed particular reliance on the recent Sheriff Appeal Court Decision of Cumming v SSE plc [2017] SAC (Civ) 17. In that case where the injury related to a diagnosis of pleural plaques, there were averments made of the Pursuer’s distress and anxiety with particular reference to the Pursuer’s knowledge of former colleagues suffering from asbestos-related conditions and two named individuals having died as a result of said disease.

In reaching her decision Sheriff Mackie made particular reference to the fact that Parliament had not authorised the unrestricted instruction of Counsel in the National PI Court although it could have done so. She referred to the Decision in Cumming which stated the question of sanction of the employment of Counsel remained quintessentially within the judgement or discretion of the Sheriff.

In dealing with each of the Pursuer’s submissions she distinguished the case from that of Cumming stating that ultimately there were two issues to be dealt with in the case, one of fact, namely the circumstances of the accident and the other of opinion, namely, the nature of the injury sustained by the Pursuer. She was not satisfied in the circumstances of the case that it was reasonable to employ Counsel and therefore refused the Pursuer’s Motion.

This case demonstrates to Practitioners that the Court will consider in detail the facts and circumstances of each individual case when dealing with a Motion for sanction for Counsel, deciding each on its own merits.

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