Scottish Sheriff Court Decisions

Note

by

Sheriff Derek C W Pyle

in causa

Dereck Mackenzie, residng at Parks Farm, Inverness, Pursuer

against

Mrs Aileen Ryan, residing at 8 Lambert Drive, Dunfermline, Defender

Inverness, 15 February 2006

On 18 January 2006, Sheriff Pollock refused for want of insistence the defender's motion for leave to appeal his earlier interlocutor of 22 June 2005. Of consent, he found the defender liable in the expenses of the motion. He also continued until 1 February 2006 consideration of the pursuer's motion for sanction for the employment of counsel at the hearing.

It might have been preferable that this remaining matter had been placed before Sheriff Pollock, but neither party took that point when they appeared before me. In any event, I had been involved earlier in the action and was therefore aware of the substantive issues with which it was concerned.

In the action the pursuer seeks interdict against the defender to prevent certain actings which the pursuer avers are attempts by the defender, as landlord, to interfere with the pursuer's peaceful possession of a cottage which is still held by him under a lease. The defender avers that following a decision of an arbiter in respect of a notice of resumption by the defender the lease came to an end and she is entitled to resume occupation of the subjects.

On 2 September 2004, Sheriff Pollock granted interim interdict, before service, in terms of the pursuer's crave. That order was continued on 7 September 2004 and the action was sisted. On 27 June 2005, Sheriff Pollock recalled the sist and, inter alia, continued the interim interdict, subject to certain amendments. He also prepared an extensive note setting out the reasons for his decision. He found the defender liable in the expenses of the motion, but refused the pursuer's motion for sanction for the employment of counsel thereanent.

On 7 July 2005, the defender lodged a motion to recall the interim interdict. On 19 August 2005, I refused that motion, found the defender liable in the expenses of it, but refused the pursuer's motion for sanction for the employment of counsel.

When the case called before me on 1 February 2006, counsel for the pursuer renewed his motion for sanction for the employment of counsel in respect of the hearing on 18 January 2006. He submitted that employment of counsel was justified because of the difficulty and complexity of the case and the procedural significance of the earlier hearing. This was not a "stand alone" action; there had been and are other arbitration proceedings. A motion for leave to appeal so long after the interlocutor to be appealed was unusual. It was also of procedural significance, given that the interim order was in respect of the whole substance of the action.

I pointed out to him that this might be all very well if I or Sheriff Pollock had previously granted sanction for the earlier hearings, but we had not done so. It was therefore difficult to see what was different about the hearing on 18 January to warrant another approach. Counsel then developed a further - and more original - submission. He pointed out that the solicitor who appeared for the defender at that hearing was [X] who is a solicitor-advocate and the head of litigation at [YZ], a large firm of solicitors in Edinburgh. The pursuer's solicitor was from a small firm of solicitors in Inverness, which did not claim to be litigation specialists, but were general practitioners. It was therefore only fair and reasonable that the pursuer should himself be entitled to recover the expense of instructing his own litigation specialist, namely junior counsel. This was particularly so when the pursuer was faced with such a startling motion, which was unusual not only because the interlocutor sought to be appealed against late had been pronounced nearly six months previously, but also because it was plainly incompetent, standing that in terms of Section 27(a) of the Sheriff Court (Scotland) Act 1907 leave to appeal was unnecessary against the granting of interim interdict. The pursuer's solicitor had quickly concluded that the motion must fail, but on giving the matter second thoughts had worried that he had missed something, particularly given the status, knowledge and experience of [X]. He had therefore decided to instruct counsel. That was a reasonable step in the circumstances.

The defender's solicitor, who was a local correspondent instructed by [X], agreed that the motion had been doomed to failure - a conclusion which [X] had, albeit belatedly, reached by dropping it. There was nothing complex about the matter. That was the test for sanction for employment of counsel - a test which the pursuer manifestly failed.

The law relating to this issue is usefully summarised in Macphail, Sheriff Court Practice (2^nd edit.) at para 12.25, where he states:

"The test appears to be whether the employment of counsel is appropriate by reason of circumstances of difficulty or complexity, or the importance or value of the claim."

Unsurprisingly, none of the cases cited in Macphail addresses the argument put by counsel in this case.

It seems to me, first of all, that there is nothing in the motion itself which would entitle me to consider the overall complexity of the action or the importance of it to both or either party; that is a matter which has been addressed on two previous occasions by the court and a conclusion reached against the pursuer on each. It might, of course, have been different if sanction had been granted when the court continued the interdict on 27 June 2005. If that had occurred, it would perhaps have been reasonable for counsel to appear for the pursuer when the court was considering whether leave to appeal was to be granted, even where, as here, the motion was incompetent. But that is not the situation. It also seems to me that it might be wrong to grant sanction now, when it had previously been refused in the circumstances I have set out, on the basis of an argument which, if correct, ought equally to apply to the previous hearings for which sanction had been refused. Nevertheless, I will deal with it now.

As I have already said, there is nothing in the authorities to which Macphail refers dealing with the position of a party faced with opposition by a solicitor-advocate. The only mention of solicitor-advocates by Macphail is a passage in the same paragraph, where he states,

"The criterion for giving sanction is not that of necessity, because in the sheriff court, unlike the Court of Session, it is not necessary for a party who desires legal representation to be represented by counsel or a solicitor-advocate."

I might usefully summarise the circumstances described by counsel as follows:

1.      The pursuer's solicitor is a general practitioner in a small rural practice;

2.      The defender's solicitor is a specialist litigator in a large commercial law firm;

3.      The defender's solicitor has an additional qualification, namely he is a solicitor-advocate;

4.      The motion was so inept that the pursuer's solicitor decided that he (not the solicitor-advocate) must be wrong. He therefore instructed counsel.

It seems to me that the first three circumstances are not of themselves sufficient justification to satisfy the test for sanction as described by Macphail. The matter can be dealt with by considering a simpler proposition, namely that where a party is faced with counsel or a solicitor-advocate on the other side he himself may employ counsel in the safe knowledge that in the event of success the court will sanction that employment. The argument would run along the lines that it is scarcely open to one party who employs counsel or a solicitor-advocate to oppose the sanction for their employment by the other party. In my opinion, that is not the law. The issue is whether the court objectively considers that the action is sufficiently difficult or complex or the claim sufficiently important or of sufficient value to warrant the employment of counsel. Whether or not the unsuccessful party does so is, to my mind, irrelevant. There is nothing additional in the circumstances described by counsel which would warrant a departure from that conclusion.

I accept that the fourth circumstance is a strange one - it has the ring of truth about it, although I, myself, as a solicitor-advocate and former head of litigation of a large commercial law firm in Edinburgh, consider that counsel is doing a disservice to his instructing solicitors, for whose competence I can vouch. Indeed, my own experience would suggest that not all the so-called best civil litigators necessarily end up in large commercial law firms; some of the best I have seen have come from small firms in rural parts of Scotland. It has to be conceded that there would be a certain justice if such an incompetent motion resulted in an additional penalty. In my view, however, sanction would not be justified in that circumstance. Indeed, the issue which arose was so simple to address that it was the very antithesis of difficult or complex. That the pursuer's solicitor was so surprised by the incompetence of the defender's solicitor that he lost confidence in his own judgment, while perhaps understandable, is not a factor which renders a simple matter difficult or a straightforward matter complex, so as to be deserving of sanction for the employment of counsel.

Accordingly, I refuse the pursuer's motion.