Scottish Sheriff Court Decisions

Second Defenders

A19/00.

Act. Sinclair Alt. Gilmour

Peterhead, September 2001.

The Sheriff, having resumed consideration of the cause and the Pursuer's motion to certify the Proof as suitable for the employment of junior counsel, grants the same.

The Pursuer's motion was that I should certify the Proof as suitable for the employment of junior counsel. The solicitor for the Defenders opposed that motion on the ground that it was incompetent, and also on the merits.

The case involves an injury to the Pursuer which he sustained while crossing a bridge, the land on one side being owned by the first defender and the land on the other being owned by the second defenders.

Mr. Gilmour for the Defenders argued that, because counsel had never appeared in the case, and, in particular, had not appeared at the Proof, the Pursuer's motion was incompetent. He referred to the only reported case, namely Williams v. Fraser 1991 SCLR 307, a decision of Sheriff Kelbie. Mr Gilmour indicated that, to his knowledge, there were no other reported cases, but he advised me that he had been involved in another case where Sheriff Kelbie had followed the approach in Williams.

In that case, reference is made to MacPhail on Sheriff Court Practice paras. 12.24-26; Lewis on Sheriff Court Practice (7^th ed.) p. 264 and Dobie on Sheriff Court Practice pp. 334-335. Although, there is now a second edition of MacPhail, the relevant passages are in the same numbered paragraphs.

At para. 12.24, MacPhail says, "A motion to sanction the employment of counsel should usually be made orally at the conclusion of the proof or debate in which counsel has appeared." Although the word "usually" is used, the next part of the paragraph deals with the situation in which such a motion is not made. MacPhail does not say specifically that it is incompetent to make the motion where counsel has been employed, but has not actually appeared. However, Sheriff Kelbie's comment in Williams is, "It does not appear to have been in contemplation of Sheriff MacPhail that such a motion could be made where counsel has not appeared at all." (p. 308E)

Lewis's comment is "The employment of counsel is limited to appearance in court unless in exceptional cases."

Dobie says, "Fees are in general limited to attendances in court and fees for one consultation only in course of the case are allowed."

In Williams, the solicitor for the defender argued that if counsel had to appear in court before sanction could be granted, it followed that counsel might have to travel to a distant court, only to say that the case had settled. Nevertheless, despite Sheriff Kelbie's concession that there was "considerable attraction" about that, the authorities to which he was referred, in his opinion, contemplated counsel's appearance, as a sine qua non of sanction for their employment.

Mr Sinclair's submission was that I need not follow the decision in Williams, but, in any event, the authorities did not say specifically that counsel had to appear before sanction could be granted.

I have the misfortune to disagree with Sheriff Kelbie. None of the authorities specifically addresses the issue, and it may be that they have not contemplated the situation where the motion is made in the absence of counsel. However, the use by Lewis of the phrase "unless in exceptional circumstances," and by Dobie of "in general," indicate that their comments relate to the norm, but are not necessarily of universal application. It is perhaps strange, that Williams is not cited in the 2^nd ed. of MacPhail.

In my opinion, there is no reason why counsel need appear before such sanction can be given. Expert witnesses can be certified as such without the need for an appearance in court. Furthermore, one could imagine a case of some complexity where counsel has been involved by both parties from the outset. If the case settles, perhaps because of the advice from

counsel, it seems strange to require the attendance of counsel to advise the court of that fact in order to be sanctioned. In another situation, counsel might be instructed at the last minute for a debate, and, after listening to the submissions of the opponent, do no more than seek leave to amend. The case might not go any further on that occasion, but the brief appearance by counsel would entitle him or her to make the motion to sanction counsel's involvement. The justification for sanction in the later case may seem less obviously meritorious than in the former case, but, on the basis of Williams, it could be justified in the second instance, but not in the first.

I accept that, if the debate or proof is not conducted by counsel, it might be more difficult to persuade a court to sanction their employment, but that is something which the parties must take into account in such a situation.

Mr Gilmour's submission was that the case was a relatively simple one based on occupiers' liability. The test as laid down in the authorities is that the case is difficult or complex, or there is a valuable claim, or one which is of importance to the client. In his submission, none of these is applicable, and the motion ought therefore to be refused.

Mr Sinclair conceded that the case was not particularly important for his client, and that the sum sued for was not unusual in the sheriff court. That said, he submitted that the title position vis-à-vis the owners of the ground on either side of the bridge was not clear, because the defenders had not been forthcoming about the ownership of the ground. He indicated that, oat one time, it had been contemplated that the local authority might have to be brought into the action because they supplied waste bins in the area where the accident had happened. For these reasons, he submitted that sanction ought to be given,

I am of the opinion that the proof merited the employment of junior counsel. The accident took place on a bridge on either side of which, there were "public footpaths." (Article 2 of Condescendence, p. 3 of the Amended Record, No. 17 of Process.) The title position might not have been clear, depending on the nature of the descriptions of the properties owned respectively by the defenders. That, of itself, would not merit the employment of counsel. However, the legal issue raised in this case is one of some nicety, in that there appears to be only one reported case in Scotland viz:- Johnstone v. Sweeney 1985 SLT (Sh.Ct.) 2, another decision of Sheriff Kelbie in which he took the view that it was not impossible for the proprietor to be in sufficient control of the ground to establish liability under the Occupiers Liability (Scotland) Act 1960. There are, however, English and Northern Irish authorities which come to the opposite conclusion in construing the equivalent legislation in these jurisdictions. (see Cusine & Paisley on Servitudes and Rights of Way para. 21-28) I do not know whether these authorities would have beendrawn to my attention at the Proof, but I would, in any event, have given parties an opportunity to consider their relevance.

For that reason, I am of the opinion that the case is sufficiently complex to merit the employment of junior counsel for the proof, and accordingly I sanction such employment.