SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

SA559/08

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	LYNNE MARY TEVIOTDALE
	Pursuer and Respondent
	against
	NORWICH UNION INSURANCE LIMITED
	Defenders and Appellants

For the defenders and appellants: Ms J Gammell, of Simpson & Marwick, Solicitors, Edinbrugh

For the pursuer and respondent: C Allardice, Advocate, instructed by Thompsons, Solicitors,

Edinbrugh

DUMFRIES: 23 June 2009

The Sheriff Principal, having resumed consideration of the cause refuses the appeal and answers the question of law posed for the opinion of the court namely "Did I err in law in the above circumstances in finding conduct on the defenders' part in relation to the proceedings or claim which was unreasonable" in the negative; upholds the sheriff's interlocutor of 5 March 2009 complained of; finds the defenders and appellants liable to the pursuer and respondent in the expenses of the appeal as assessed; refuses to certify the appeal as suitable for the employment of counsel.

NOTE:

Background to the appeal

1.            This small claim case arises out of a road accident which took place on 24 February 2008 in Lockerbie train station car park. Damages were agreed between the parties in the sum of £997.04 including interest. A proof restricted to liability took place before the sheriff in Dumfries Sheriff Court on 5 March 2009. The pursuer is the owner of a motor vehicle registered number SM51KWZ. The defenders are sued in terms of Regulation 3 of the European Communities (Rights Against Insurers) Regulations 2002 as the insurers of a vehicle registration number PF57YJJ driven at the time in question by Callum Howatson. In the statement of claim the pursuer avers at para 3:

"The pursuer was proceeding forwards into a parking space on her near side, when the defenders' insured, Alan Howatson, driving vehicle registered number PF57YJJ reversed at speed from the other side of the road, colliding with the offside of the pursuer's vehicle."

At answer 3 in their adjusted answers to the statement of claim the defenders aver:

"Admitted that on or around 24 February 2008 the pursuer was driving vehicle registration number SM51KWZ in Lockerbie train station car park. Quoad ultra denied. Explained and averred that whilst Callum Howatson was reversing into a parking space (in the car park), the vehicle driven by the pursuer attempted to drive forwards into the same space, thus causing a collision. Explained and averred that the pursuer's car was not in the vicinity when Callum Howatson commenced his reversing manoeuvre ..."

2.            At the conclusion of the hearing the sheriff found in favour of the pursuer and granted decree for the sum of £997.04. He also invited parties to address him on the question of expenses and, having heard parties, found the defenders liable to the pursuer in expenses as assessed on the summary cause scale on the basis that there had been unreasonable conduct on the part of the defenders and appellants in relation to these proceedings. It is against that part of his decision only that the defenders and appellants have appealed.

3.            Section 36B of the Sheriff Courts (Scotland) Act 1971 read with section 53 of the Scotland Act 1998 limits the expenses recoverable in a small claim to those set out in an Order in Council made by the Scottish Ministers. The relevant order as amended is the Small Claims (Scotland) Order 1988 - originally made by the Secretary of State - as amended by the Small Claims (Scotland) Amendment Order 2007. In terms of this order - as amended - the pursuer's recoverable expenses would have been limited to a maximum of £150 as the value of the claim exceeded £200 but not £1,500 - Articles 4(2) and 3(a). However that limitation is expressly subject to the provisions of section 36B of the 1971 Act. This sub-section creates a number of exceptions to the rule limiting recoverable expenses in small claims. The relevant exception for the purposes of this case is contained in subsection (3)(b). This provides that the limitation on recoverable expenses does not apply to a party to a small claim "on whose part there has been unreasonable conduct in relation to the proceedings or the claim".

4.            The sheriff records that it accordingly followed that if he were satisfied that there was on the defenders' part conduct in relation to the proceedings or the claim which was unreasonable, then he was required to find the defenders liable in expenses to the pursuer on the summary cause scale.

5.            The sheriff records that the pursuer and her witness required to travel from Liverpool to attend the evidential hearing. The pursuer had explained that the accident happened as she entered the car park and was attempting to enter a vacant car parking space. The defenders' insured then reversed his car into her car at high speed. This evidence was supported by her boyfriend Robert Gregory. Both witnesses spoke to the pursuer driving into the car park at a slow speed. The defenders' insured Callum Howatson explained that he had driven out of his car parking space to allow another vehicle to leave it's space and to exit the car park. He then attempted to reverse back into his space at which point his vehicle collided with that of the pursuer. He admitted in evidence that he had not seen the pursuer's vehicle when he was reversing. He accepted that her vehicle was in his blind spot and that he had a duty to keep a look out for other vehicles.

6.            The sheriff records that a key consideration was that the defenders' insured Callum Howatson had never seen the pursuer's car enter the car park. He had suggested in his evidence that the pursuer must have driven into the car park too quickly, but that must have been speculation on his part as he had not seen her enter the car park and therefore could not comment on whether she had been driving too quickly or not.

7.            The sheriff further records that at the conclusion of the evidence both representatives handed up diagrams showing how the accident had occurred. Both were substantially in identical terms showing Callum Howatson's car colliding with the pursuer's car as she entered the car park. The sheriff found the defenders' insured Callum Howatson at fault for the accident as he had a duty of car to keep a lookout for other vehicles and he had not been able to see the pursuer's vehicle when she entered the car park. It ought to have been reasonably foreseeable that other vehicles would enter the car park. He did not think there was an contributory negligence on the part of the pursuer as she had been proceeding with care and at a slow speed into the car park.

8.            The only question was whether the expenses to which the pursuer became entitled would be limited to a maximum of £150, or on the summary cause scale on the basis that the defenders' insured's conduct in relation to the proceedings or claim had been unreasonable.

9.            The sheriff concluded that there had been on the part of the defenders conduct in relation to the proceedings or claim which had been unreasonable. They were the insurers of the vehicle driven by Callum Howatson. They allowed the action to proceed to an evidential hearing without making any offer to settle. Further, for there to be any reasonable hope of the insured's account of the pursuer driving too fast in the circumstances succeeding, there would require to be clear evidence of that. However, neither the insured nor his witness gave evidence at the hearing that they had seen the pursuer's vehicle enter the car park. There was therefore no sufficient evidential basis to support such a conclusion.

10.        The sheriff stated in his note:

"27. I considered there had been on the part of the defenders conduct in relation to the proceedings or claim which had been unreasonable.

28.           They had allowed the action to proceed to an evidential hearing without making any offer to settle. That was on the basis that either the pursuer or the insured was fully responsible for the accident. However, there were in reality almost identical accounts of how the accident happened as evidenced by the similar diagrams each party had produced. For there to be any reasonable hope of the insured's account of the pursuer driving too fast to succeed, there would have required to have been clear evidence of that but neither the insured or his witness gave evidence at the hearing on evidence that they had seen the pursuer's vehicle enter the car park. There was therefor no sufficient evidential basis for them to support such a conclusion. Nor did they produce an expert report showing the insured's speculation to have been likely to have been correct.

29.           Moreover as an insurance company with experience in road accident claims they ought in my view to have realised the difficulties the insured faced as he was the one reversing in the car park whereas the pursuer had been the one entering it.

30.           There were also steps their insured could have taken to avoid a collision, such as exit the car park and re-enter at the main entrance. He had also been reserving and unable to see the pursuer enter the car park because his vehicle was on his blind side.

31.           In all the circumstance therefore there was a very strong likelihood that the defenders would not succeed in their defence based on the information they had about the accident and it would have been prudent for them as a commercial organisation used to assessing risk to have taken steps to have limited their exposure to a motion for expenses on the summary cause scale such as by making an offer to settle at least on a pragmatic basis. That they did not do so was in my opinion unreasonable conduct on their part as it led to the case being resolved at an evidential hearing at greater expense to the pursuer as might otherwise have been the case.

32.           In making this decision I took into account the error in the pursuer's pleadings only corrected prior to commencement of the evidential hearing that she had reversed into the car parking space rather than had driven forward into it as recorded in the amended statement of claim which was lodged without objection by Ms Cohen. This was not material in my opinion as the defenders' answers disclose they knew the pursuer had driven forwards towards her car parking space. This, if anything, made their proceedings to an evidential hearing worse than if they were acting on the assumption she had reversed into her space. Accordingly they were always in the position of knowing how the pursuer's vehicle proceeded towards her car parking space i.e. in a forward manner and therefore was not sprung on them only at the evidential hearing itself"

11.        In his commentary on the hearing of adjustments the sheriff also states:

"The defenders ... had indication of their client driving from out of his space and then attempting to reverse back in. The insured did not see the pursuer's vehicle enter the car park. I believe I was entitled to assume that was the account he gave in any precognition to the defenders. I was not informed to the contrary when I heard submissions on expenses."

12.        The sheriff accordingly held that there had been conduct on the part of the defenders which was unreasonable and awarded the pursuer expenses on the summary cause scale. It is against that decision that the defenders now appeal.

Submissions for the defenders and appellants (hereinafter referred to as the appellants)

13.        Solicitor for the appellants submitted that the decision of the sheriff finding the appellants liable to the respondent in the expenses as assessed on the summary cause scale on the basis that there had been unreasonable conduct in relation to the proceedings or the claim on the part of the appellants was not justified. It was accepted that this was a discretionary decision, but in the whole circumstances the sheriff had erred.

14.        Although the documents were not submitted to the sheriff, solicitor for the appellants tendered to me two documents:

(a)          a copy of the claim form completed for the appellants by the insured of their insured vehicle Callum Howatson. He described the accident's circumstances:

"insured was reversing into parking space, third party came round corner and drove forwards into same space".

(b) a telephone attendance file note between Sophie Jones of her firm and Callum Howatson. This telephone note recorded his evidence as follows:

"Mr Howatson turned right as he went into the car park, looking for a space. There were no spaces, so he went to turn round. He then saw a red estate car emerging from a space. He let the red car out, and watched it go out of the car park, then looked around himself to check that nothing was coming. He saw that nothing was coming, so proceeded to reverse into the space ... Mr Howatson said he does not know where the pursuer's car came from. It was obviously pulling forward into the same space ... He hadn't seen the pursuer's vehicle coming, but he insists it wasn't there when he started reversing".

Although it is not recorded in the telephone note, I was advised that Callum Howatson had stated that he did not consider himself to blame.

15.        It was submitted that originally the statement of claim had indicated that the pursuer was reversing into a car parking space, although this was amended without objection on the part of the appellants the day before the proof to the effect that the pursuer's car was proceeding forward. This was in line with the information given to the appellants by their insured.

16.        It was suggested on behalf of the appellants that there was enough information in their possession to defend the case. The sheriff at para 32 of his stated case recorded that Callum Howatson had always known that the respondent's car was moving forward. It was suggested it was for the sheriff to make up his mind on the basis of the evidence which he heard. When an insured disputed liability, it was very difficult for insurers or their agents to prejudge the issue. While it was accepted that the drivers of both cars produced at the proof diagrams showing an almost identical version of events, these diagrams were not available prior to proof.

17.        It was submitted that based on the evidence which was in the possession of the appellants prior to the proof they were entitled to go to proof and make the pursuer prove her case. At the proof the appellants' insured Callum Howatson had made concessions during cross-examination to the effect that he had simply not seen the respondent's vehicle and that it had been his blind spot. It was suggested that that evidence was not consistent with what had been stated earlier to the appellants by their insured.

18.        I was referred to the case of Milne v Uniroyal Englebert Tyres Ltd 1995 SLT (Sh Ct) 23. That case involved a small claim by an employee against his employers where the pursuer averred that the machine at which he had been working at the time of his accident had been in manual mode. The sheriff found in favour of the defenders after proof and found the pursuer liable to the defenders in the expenses of the cause on the summary cause scale. The sheriff concluded that there had been unreasonable conduct on the part of the pursuer, in particular as the pursuer did not ultimately support his averment that the machine had been in manual mode. Sheriff Principal Nicolson stated at 26D:

"However, I have come to the conclusion that in a case like the present one, where a pursuer's evidence at proof does not match the case which he has put forward initially, it will be necessary to come close to the position of being able to say that he has knowingly put forward a false case before it can be said that he has been guilty of unreasonable conduct in relation to either the proceedings or the claim. As was said by the solicitor for the pursuer, it is by no means uncommon for a pursuer to fail in an action because, at the end of the day, his evidence does not measure up to what was stated in the pleadings; and in my opinion it would be difficult, if not impossible, to say that that alone was sufficient to justify a finding of unreasonable conduct. ..."

19.        It was submitted that that was what had happened in this case. The sheriff made no mention of the appellants' insured having given his evidence in a dishonest fashion. In the claim form and the telephone conversation he had been acting in good faith. It was submitted that at most it could be said that the appellants' insured's evidence did not meet up to the averments which had been made on the basis of the statement given. The sheriff was in error in assessing that to be evidence of unreasonable conduct.

20.        It was also submitted that it was the insured's conduct and not the insurance company's conduct which required to be looked at. I was referred to the case of Penman v North British Steel Group 91 SLT (Sh Ct) 45. In that case a small case was settled extra judicially and the defenders contended the pursuer's conduct in relation to proceedings had been unreasonable in respect that his solicitors had refused to make available reports regarding the pursuer's medical condition and had refused to negotiate a settlement unless and until the defenders undertook to pay the pursuer's legal expenses. Sheriff H McLean stated at 46D, referring to Rule 26(1)(a) and (b) of the Small Claims Rules:

"I think that this Rule relates to parties and not their solicitors and, moreover, I think that it relates to proceedings in court, and not to the solicitors' conduct during negotiations."

It was submitted that it was the conduct of the driver in court which required to be looked at. There was no evidence that the driver gave evidence in court in bad faith. It was submitted that there was a requirement for the situation to come close to a position where the party was knowingly putting forward a false case, before it could be said that he was guilty of unreasonable conduct. It was submitted that the conduct of the driver had not been unreasonable.

Submissions for the pursuer and respondent (hereinafter referred to as the respondent)

21.        Counsel for the respondent submitted that, in considering the sheriff's exercise of his discretion, it was not appropriate to take into account at this stage material which was not before him. The sheriff did not have before him either the claim form or the telephone note which had been placed before me at the appeal hearing. The sheriff had made his position clear as follows:

"41. My findings in relation to expenses were not based solely on what was contained in the diagrams. I hope that I have made it plain that both parties had information about how the accident happened which was essentially similar and that was the essential worth of the diagrams. The defenders might not have previously seen the pursuer's diagram but that was in my opinion not material. They had indication of their client driving from out his space and then attempting to reverse back in. The insured did not see the pursuer's vehicle enter the car park. I believe I was entitled to assume that was the account he gave in any precognition to the defenders. I was not informed to the contrary when I heard submissions on expenses.

44. It was in those circumstances that I reasoned as I did in paras 28 to 32 above. I was of the view that the defenders' failure to make any offer in settlement combined with these particular circumstances rendered their conduct in relation to the proceedings or claim to be unreasonable for the purposes of awarding expenses against them on the summary cause scale."

22.        I was also referred to the note of appeal wherein the appellant stated that the point of law in which the appeal is to proceed was:

"that the sheriff erred in finding that the actual conduct on the defenders' part in relation to the proceeding or claim was unreasonable and therefore awarding summary cause expenses in a small claim action based on Rule 21.6 of the Small Claims Rules and s36B of the Sheriff Court (Scotland) Act 1971."

It was submitted there was no specification at all of the ground of appeal. No fair notice had been given. The information given at the appeal from the claim form and note of telephone conversation with the appellants' insured was not before the sheriff. Be that as it may, it was argued that, in any event a perusal of these documents made it quite clear that the appellants' insured had not seen the respondent's car before the impact. He ought to have done so. A comparison of para 3 of the statement of claim with answer 3 (para 1 hereof) indicated that both parties were talking about the same accident. Both essentially were saying that the appellants' insured was reversing into a car parking space about to be occupied by the pursuer. This was made even clearer by diagrams produced by both parties. There was essentially agreement regarding the facts of the accident. It was in the particular circumstances of this case that the sheriff thought the appellants' conduct was unreasonable. It was clear from the information in their possession that the appellants' insured had reversed into the respondent's car at a time when he had not seen it and when he ought to have done so. As far as the amendment on behalf of the respondent was concerned, it was submitted that this merely brought the facts into line with those which were known to the appellants from their client's claim form. The amendment would come as no surprise and it was not the subject of objection. Had the appellants' position been that the amendment materially affected the fact that they were going to proof, submissions to that effect would undoubtedly have been made to the sheriff, especially when considering the question of expenses. It was submitted that the amendment resulted in no prejudice to the appellants. They were already in possession of that information.

23.        It was submitted there were two issues which weighed with the sheriff in reaching his decision:

(1) He relied on the fact that the appellants' insured was reversing and collided with the respondent's vehicle without seeing it at a time when he ought to have done so. In these circumstances the appellants should have realised the difficulties they would face in court in avoiding liability. I was referred to the cases of Donaldson v Hays Distribution Services Ltd 2007 CSOH 31 and Green v Bannister 2003 EWCA Civ 1819 concerning the duties of care incumbent on a driver of a vehicle which is reversing. I was also referred to the Highway Code, 2007 edition, para 202:

"Look carefully before you start reversing. You should

·        use all your mirrors

·        check the blind spot behind you (the part of the road you cannot see easily in the mirrors)

·        check there are no pedestrians (particularly children), cyclists, other road users or obstructions in the road behind you

reverse slowly while

·        checking all around

·        looking mainly through the rear mirror

·        being aware that the front of your vehicle will swing out as you turn

get somebody to guide you if you cannot see clearly"

Looking at this matter pragmatically, the appellants' insured was clearly at fault and this should have been obvious to the appellants.

(2) If there was to be any possibility of the appellants succeeding, there would have to be evidence of the respondent's vehicle being driven at speed. There was no evidence at all about speed from either the appellants' insured or his passenger. I was referred to para 17:

"a key consideration was Mr Howatson had never seen the pursuer's car enter the car park. He suggested in his evidence she must have driven into the car park too quickly but that must have been speculation on his part as he had not seen her enter the car park and therefore could not comment on whether she had been driving too quickly or not ..."

24.        It was submitted there was no evidence before the appellants on which they could reasonably take the view that they could succeed in this case. There was no prospect of avoiding liability. In these circumstances it was not reasonable for an insurer to proceed to proof and allow a claimant to incur substantial expenses which she would not be able to recover.

25.        It was submitted that this case fell to be distinguished from the case of Milne v Uniroyal Englebert Tyres Ltd supra. In that case the evidence led at the proof in support of a particular averment was insufficient to allow that averment to be held as proved. Of significance was the passage at 24J:

"In fact, and as appears from a passage elsewhere in the stated case, the pursuer had said in evidence in chief that he thought that he had put the machine into manual mode, and it was only under cross-examination that he said that there was "every possibility" that he had left the machine in automatic mode. In that situation, it was submitted, the sheriff had misdirected himself if, as appeared to be the case, he had based his decision upon the proposition that the pursuer had consistently said that the machine was in automatic mode. In effect the sheriff was characterising as unreasonable conduct a shortcoming in evidence of a kind which is by no means uncommon when a case comes to proof."

This situation was to be distinguished from a situation where an examination of the appellants' insured's evidence indicated that there was no reasonable prospect of a defence on the merits. It was in these circumstances that the sheriff correctly concluded that the conduct of the appellants in refusing to negotiate with the respondent was unreasonable. In this case, in effect, both sides were endeavouring to prove the same thing and this clearly pointed to fault on the part of the appellants' insured. The appellants' insured did not see the respondent's car and there was no factual evidence to support the contention that the respondent's car was being driven too quickly.

26.        Contrary to what was said on behalf of the appellants, it was submitted that the conduct which was under scrutiny as far as the award of expenses was concerned was that of the appellants. They were the parties to the cause. Their insured was not a party to the cause. For the reasons which he gave in paras 28 to 32 inclusive (which I have set out in detail in para 10 hereof) the sheriff took the view that the conduct of the appellants was unreasonable and in these circumstances made the finding which he did in respect of the expenses awarded to the respondent. He was correct so to do.

Decision

27.        In this small claim the sheriff made an award of expenses in favour of the respondent who had succeeded in her action against the appellants. He granted decree for agreed damages of £997.04 including interest. The issue in this appeal is whether the sheriff was entitled to allow the expenses awarded to the respondent to be assessed in accordance with the statutory table of fees of solicitors appropriate to summary cause on the basis that there had been unreasonable conduct in relation to the proceedings on the part of the appellants, who are the insurers of the vehicle driven by Callum Howatson.

28.        The party against whom the sheriff has awarded expenses is the Norwich Union Insurance Limited, who are the insurers of the vehicle driven by Callum Howatson. They are the defenders in this action. The award of expenses was not made against the insured driver. The sheriff was correct, in my opinion, to direct his attention to the conduct of the insurers as the party to the action. I do not accept the submission for the appellants that it is the conduct of the appellants' insured in relation to the proceedings that is under scrutiny.

29.        On the basis of his findings, the sheriff considered that the information available to the appellants from their insured indicated that (a) he did not see the respondent's vehicle while he was in the course of his reversing manoeuvre and (b) there was no evidence from which any conclusion of undue speed on the part of the respondent could be drawn. The sheriff proceeded on the basis of the evidence given by the appellants' insured in court about the circumstances of the accident. He concluded that, in the absence of any submission to the contrary when the question of expenses was being argued, he was entitled to assume that the evidence he gave was the same as any account which he had given on precognition. That was a course which the sheriff in my opinion was entitled to take. I accordingly agree with the sheriff's conclusion that, in these circumstances, there was:

"a very strong likelihood that the defenders would not succeed in their defence based on the information they had about the accident and it would have been prudent for them as a commercial organisation used to assessing risk to have taken steps to have limited their exposure to a motion for expenses on the summary cause scale such as by making an offer to settle at least on a pragmatic basis. That they did not do so was in my opinion unreasonable conduct on their part as it led to the case being resolved at an evidential hearing at greater expense to the pursuer as might otherwise have been the case.

In any event the information supplied to me, which was not available to the sheriff, about the contents of the claim form completed by the appellants' insured and the note of a telephone conversation between the insured and a member of the firm of solicitors representing the appellants make it clear that the appellants' insured did not know where the respondent's car came from and he had not seen it coming. There was accordingly evidence available to the appellants that their insured had not been keeping a proper lookout. It was further obvious that there was no evidence of undue speed on the part of the respondent.

30.        The sheriff makes himself clear in finding in fact 41:

"My findings in relation to expenses were not based solely on what was contained in the diagrams. I hope that I have made it plain that both parties had information about how the accident happened which was essentially similar and that was the essential worth of the diagrams ... They had indication of their client driving from out his space and then attempting to reverse back in. Their insured did not see the pursuer's vehicle enter the car park. I believe I was entitled to assume that was the account he gave in any precognition to the defenders. I was not informed to the contrary when I heard submissions on expenses."

The respondent resided in Liverpool and was exercising her right to pursue a legitimate claim against the appellants in Dumfries Sheriff Court. In my opinion the appellants failed to act reasonably in refusing to treat with the respondent with a view to resolving this case. As a result the respondent incurred substantially greater expense in the prosecution of her case than should reasonably have been necessary. It is my opinion that the respondent should be entitled to recover sums expended proceeding with this case which had been incurred as a result of the unreasonable conduct of the appellants in refusing to negotiate a settlement of the claim with her. The respondent would not have been able to recover all her expenses, especially as a result of the fact that she lived in Liverpool, if this motion had not been granted.

31.        I agree with counsel for the respondent that this case falls to be distinguished from the case of Milne v Uniroyal Englebert Tyres Ltd supra. That case involved a consideration of whether an averment necessary for the pursuer to succeed had been proved by the evidence of the pursuer. As a result of answers given in cross-examination, it was held that the pursuer had failed to prove that vital averment. That is an entirely different matter from an insurance company having in their possession clear evidence of liability on the part of their insured and not acting reasonably on the basis of that evidence.

32.        This was a discretionary decision on the part of the sheriff. I am only entitled to interfere if I considered his decision is completely or plainly wrong, wholly unwarranted, manifestly inequitable, unreasonable or un-judicial. I take the view this was a decision which the sheriff was well entitled to make in light of the information before him.

33.        I would like to emphasise that a decision on whether there had been unreasonable conduct in relation to the proceedings or the claim by a party to the proceedings requires to be considered in light of all the circumstances of that particular case. It is because there was particularly clear evidence of fault on the part of the appellants' insured available to them during the course of their investigation of the case that makes their conduct in these proceedings in failing to negotiate a settlement unreasonable.

34.        Parties were agreed that expenses would follow success in respect of the appeal. I was asked to certify the cause on behalf of the respondent as suitable for the employment of counsel. Counsel submitted that there was little authority on this issue which was of importance to his instructing solicitors, who advised many clients in connection with personal accident claims. The sum involved in this case is small, but it is significant that the appellants were represented by a solicitor. In the whole circumstances I am not prepared to certify this appeal as suitable for the employment of counsel.