Sanction for Counsel – a further update

Another recent case in the National Personal Injury Court has demonstrated again how the issue of sanction for Counsel continues to be a contentious one between parties.

The unreported case of Abie McCracken v Piotr Kazanowski came before Sheriff Kenneth McGowan as an Opposed Motion for Decree in terms of a Minute of Tender and Acceptance thereof. Opposition was restricted to two grounds, namely sanction of Junior Counsel as well as the delay in acceptance of the Tender.

The case arose from a road traffic accident in May 2016 where the car being driven by the Defender had collided with the rear of a car in which the Pursuer was a passenger.

The Pursuer submitted that it was implicit in the Defender’s position that the impact had not been sufficient to cause injury to the Pursuer and as such the issues arising from that were not straightforward.

Counsel’s only involvement in the case had been consultation on a Tender and the Pursuer sought sanction on the basis of the difficulty and complexity of the case as well as the importance of the claim to the client.

In terms of complexity the Pursuer submitted that the Defenders intended to challenge the credibility of the Pursuer having lodged photographs of the Pursuer working out at the gym days after the accident. This supported the contention that the Defender’s position was that the Pursuer was lying or exaggerating.

The Pursuer also referred to the fact that there were both engineering and medical experts involved in the case. The Pursuer had valued the case at £4,000 and made a Pursuer’s Offer at that amount. That had been rejected and the Defender had Tendered £1,200. In advising the Pursuer on that Tender the Pursuer’s Agent submitted it was necessary for an assessment to be undertaken of the risk faced with reference to the expert evidence and an assessment thereof. The key focus of the Consultation arranged was to give the Pursuer advice on the quality of expert evidence. A key issue was also Counsel’s assessment of the credibility of the Pursuer and how that might be viewed by the Court.

In relation to importance of the claim the Pursuer argued that the fact the Defender meant to focus on challenging the Pursuer’s credibility, meant the claim was of particular importance and as such the decision to instruct Counsel was reasonable.

On the other hand the Defenders relied on the recent cases of Cumming v SSE plc [2017] SAC (Civ) 17 and the even more recent case of McKenzie v McCormack [2017] SC Edin 67.

They submitted that the circumstances giving rise to this case were straightforward. The claim was not of a high value, even on the Pursuer’s valuation and the only issue in contention was causation.

It was accepted that both parties had engineering experts and medical experts from which evidence would be led but that the factual issues in contention were limited to the speed of the Defender’s vehicle immediately prior to the collision and the duration of the Pursuer’s symptoms. There was no particular legal difficulty on the issue of causation and it would simply be a matter for the Court to decide which expert’s evidence was preferred.

Similarly, in terms of importance of the claim, there were no special circumstances here and a mere factual dispute about the circumstances was not sufficient. In particular the Defenders relied on the recent case of McKenzie for this point (See our October Legal Update “Sanction for Counsel in the National Personal Injury Court – an update.”)

In coming to his decision Sheriff McGowan focused on trying to envisage what questions the Court would ultimately have to decide, what evidence would be assessed and how that evidence might be presented.

It was accepted by Sheriff McGowan that if the matter proceeded to Proof the likely focus of the Court was relatively narrow, the main question being whether the admitted collision had been sufficiently heavy to have caused the Pursuer’s injury.

Whilst he accepted there were a number of experts to give evidence in the case, he took the view that challenging the evidence by cross-examination did not require any special skill. There were obvious lines of cross-examination but they were not complicated issues.

Sheriff McGowan stated that it appeared to him the decision would likely turn on the Court’s assessment of credibility and reliability of the Pursuer and the Defender against the background of other sources of evidence. This did not appear to give rise to any matters which were evidentially, factually or legally difficult or complex.

He made reference both to the case of Cumming and in particular to the case of McKenzie where he agreed with the approach taken by Sheriff Mackie and noted in particular her remarks at paragraphs 13 to 15. In short he agreed that the fact that a challenge was made to the credibility of the Pursuer did not mean the case required sanction for Counsel, indeed challenges to credibility are an intrinsic part of many cases.

Sheriff McGowan therefore had little difficulty in refusing the Motion for sanction for Counsel.

Interestingly, had the Defenders limited their challenge to that of sanction for Counsel they would have been awarded the expenses of the Opposed Motion, however the Defender also made an argument about late acceptance of Tender which was very quickly dismissed by Sheriff McGowan resulting in only mixed success. Sheriff McGowan therefore found no expenses due to or by.

This decision has again demonstrated that any Motion for sanction for Counsel which is opposed will be considered in great detail by the Court and will very much turn on the facts and circumstances of the case.

As a side issue there is perhaps a lesson for Defenders opposing Motions to pick the grounds of their battle wisely should they want to successfully argue for expenses!

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