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Jillian Lawrie against Raja Bros Fife LTD (All-Scotland Sheriff Personal Injury Court) [2024] SCEDIN 51 (14 November 2024)
URL: http://www.bailii.org/scot/cases/ScotSC/2024/2024scedin51.html
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[2024] SCEDIN 51
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SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
IN THE ALL-SCOTLAND SHERIFF PERSONAL INJURY COURT
[2024] SC EDIN 51
PIC-PN4628-23
JUDGMENT OF SHERIFF IAIN W NICOL
in the cause
JILLIAN LAWRIE
Pursuer
against
RAJA BROS FIFE LIMITED
Defender
Pursuer: Hovey, Advocate; Thompsons Solicitors
EDINBURGH, 14 November 2024
Introduction
[1]
This action called as a procedural hearing on 11 November 2024 for the court to be
addressed on the competency of the pursuer's motion for certification of a skilled person
and sanction for junior counsel for drafting the Initial Writ. The competency point related to
the timing of the motion.
Background
[2]
The action, which related to a slipping accident in the defender's shop, was raised on
6 December 2023. It was undefended. The pursuer lodged a minute for decree for payment
of the sum sued for (£10,000) plus taxed expenses on 18 January 2024 without seeking
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certification of a skilled orthopaedic person or sanction for counsel. Decree was pronounced
in the terms sought on 23 January 2023.
[3]
The pursuer lodged their account of expenses timeously on 22 May 2024 which was
remitted to the Auditor of the All-Scotland Sheriff Personal Injury Court. A diet of taxation
was arranged and proceeded on 14 August 2024. The pursuer was represented by the Law
Accountant who had prepared the account. The Auditor considered the account but, before
issuing his report, he contacted the pursuer's agent to request copies of any interlocutors
certifying the skilled person and sanctioning counsel. This alerted the pursuer's agent that
no certification or sanction had been obtained due to "administrative oversight." The
Auditor continued the diet of taxation sine die to allow the pursuer to rectify the position.
[4]
The pursuer enrolled a motion for certification and sanction on 16 October 2024. The
foregoing background was not set fully out. In particular, it was not clear whether the
Auditor had issued his statement of the amount of expenses as taxed in terms of Ordinary
Cause Rule 32.3A(1). The sheriff clerk had not received the taxed account and statement
from the Auditor and no interlocutor had been issued decerning for payment of the taxed
expenses but it seemed clear that the taxation had proceeded, at least to some extent.
[5]
The court assigned a hearing to be addressed on whether it remained competent to
grant certification and sanction, having regard to the stage the taxation procedure had
reached.
3
[6]
The requirement to obtain certification of a skilled person is provided for in terms of
Rule 4.5 of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 S.S.I 2019/75 (the
2019 Rules) which is in the following terms:
"Skilled persons
4.5.--(1) No charge incurred to a person who has been engaged for the purposes of
the application of that person's skill is to be allowed as an outlay unless--
(a)
the person has been certified as a skilled person in accordance with
rule 5.3 (certification of skilled persons); and
(b)
except where paragraph (4) applies, the charge relates to work done, or
expenses incurred, after the date of certification.
(2)
Where a person has been so certified, the Auditor is to allow charges for work
done or expenses reasonably incurred by that person which were reasonably
required for a purpose in connection with the proceedings, or in contemplation
of the proceedings.
(3)
The charges to be allowed under paragraph (2) are such charges as the Auditor
determines to be fair and reasonable.
(4)
This paragraph applies where--
(a)
the account relates to--
(i)
proceedings subject to Chapter 43 of the Rules of the Court of
Session 1994;
(ii)
proceedings subject to Chapter 36 of the Ordinary Cause Rules
1993; or
(iii) a simple procedure case; or
(b)
the sheriff has determined in accordance with rule 5.3(5) that the
certification has effect for the purposes of work done, or expenses
incurred, before the date of certification."
[7]
The test which the court has to apply is set out in Rule 5.3 which provides as follows:
"Certification of skilled persons
5.3.--(1) On the application of a party the court may certify a person as a skilled
person for the purpose of rule 4.5 (skilled persons).
(2)
The court may only grant such an application if satisfied that--
(a)
the person is a skilled person; and
(b)
it is, or was, reasonable and proportionate that the person should be
employed.
(3)
The refusal of an application under this rule does not preclude the making of a
further application on a change of circumstances.
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(4)
Where the application is made in proceedings other than--
(a)
proceedings subject to Chapter 43 of the Rules of the Court of
Session 1994;
(b)
proceedings subject to Chapter 36 of the Ordinary Cause Rules 1993; or
(c)
a simple procedure case,
paragraph (5) applies.
(5)
Where this paragraph applies, the court may only determine that the
certification has effect for the purposes of work already done by the person
where the court is satisfied that the party applying has shown cause for not
having applied for certification before the work was done."
[8]
As the action was raised under Chapter 36 of the Ordinary Cause Rules there was no
requirement to obtain prospective certification. I was satisfied that the orthopaedic surgeon
was a skilled person and that it was reasonable and proportionate to employ her.
[9]
The requirement to obtain sanction for counsel is provided for in terms of Rule 4.3 of
the 2019 Rules, the salient parts of which are in the following terms:
"Fees of counsel in the Sheriff Court or Sheriff Appeal Court
4.3.--(1) This rule applies to the taxation of accounts of expenses relating to
proceedings in the sheriff court or Sheriff Appeal Court.
(2)
No fees are to be allowed for the work of counsel unless the proceedings, or
particular work involved in the conduct of the proceedings, have been
sanctioned as suitable for the employment of counsel in accordance with
rule 5.4 (sanction for the employment of counsel in the sheriff court and Sheriff
Appeal Court).
(3)
Where particular work has been sanctioned as suitable for the employment of
counsel the Auditor is to allow the reasonable fees of counsel for--
(a)
doing that work, and
(b)
subject to paragraph (6), consultations reasonably required in relation to
that work.
(4)
Where the proceedings have been sanctioned as suitable for the employment of
counsel--
(a)
it is for the Auditor to determine the work in relation to which it was
reasonable for counsel to be instructed;
(b)
subject to sub-paragraph (c), the Auditor is to allow the reasonable fees of
counsel for carrying out that work;
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(c)
subject to paragraph (3), no fees are to be allowed for work carried out
before the date on which sanction was granted unless the proceedings
are--
(i)
proceedings subject to Chapter 36 of the Ordinary Cause Rules
1993;
(ii)
a simple procedure case; or
(iii) proceedings in the Sheriff Appeal Court."
[10]
Ancillary provisions under Rule 5.4 provide:
"Sanction for the employment of counsel in the sheriff court and Sheriff Appeal
Court
5.4.--(1) This rule applies to proceedings in the sheriff court and Sheriff Appeal
Court.
(2)
On the application of a party the court may, subject to paragraphs (4) to (6),
sanction--
(a)
the proceedings;
(b)
any part of the proceedings;
(c)
particular work involved in the conduct of the proceedings; or
(d)
any combination of (a), (b) and (c),
as suitable for the employment of counsel by that party.
(3)
Where proceedings or work are sanctioned as suitable for the employment of
senior counsel, or as suitable for the employment of more than one counsel, the
interlocutor must record that.
(4)
Paragraphs (5) and (6) apply where the application is made in proceedings
other than--
(a)
proceedings subject to Chapter 36 of the Ordinary Cause Rules 1993;
(b)
a simple procedure case; or
(c)
proceedings in the Sheriff Appeal Court.
(5)
An interlocutor sanctioning proceedings, or a part of proceedings, as suitable
for the employment of counsel has no effect as regards work carried out by
counsel before the date of the interlocutor.
(6)
The court may only sanction particular work already carried out as suitable for
the employment of counsel when satisfied that the party applying has shown
cause for not having applied for sanction before the work was carried out.
(7)
The refusal of an application under this rule does not preclude the making of a
further application on a change of circumstances."
[11]
Again, there was no requirement to obtain prospective sanction given that the case
proceeded under Chapter 36.
[12]
The test which the court has to apply in relation to sanction for counsel is set out in
section 108 of the Courts Reform (Scotland) Act 2014. I was satisfied that it was reasonable
6
for the pursuer to have instructed counsel for particular work, namely, to draft the Initial
Writ due to the complexities of the case in terms of the potential issues on liability, causation
and quantum.
[13]
The 2019 Rules are silent as to when a motion for either certification or sanction
requires to be made. They do not contain any specific deadline by which motions for
certification or sanction require to be granted before it becomes incompetent to do so.
[14]
MacPhail Sheriff Court Practice 4th Edition in section IV paragraph 19.71 provides: "A
motion for certification can be made at any time prior to taxation."
[15]
The footnote relating to that proposition states:
"Taxation of Expenses Rules 2019 r.5.3(1). The rule contains no express time limit
but when read along with r4.5(1) and (2), it is thought that it is implicit that the
motion must be granted prior to taxation"
[16]
So, what is meant by "prior to taxation"? There are a number of stages in having an
account taxed and decree pronounced for the taxed expenses:
1.
The entitled party prepares an account of expenses and lodges this for taxation.
2.
The Auditor fixes a diet of taxation.
3.
The party found liable in expenses shall intimate points of objections no later
than 4.00pm on the fourth business day before the diet.
4.
Parties proceed to taxation of the account.
5.
Following the diet (or any continuation thereof), the Auditor prepares a
statement of the amount of expenses as taxed and provides this to the sheriff
clerk and parties.
6.
A party may lodge a note of objections to an account as taxed within 14 days
after the date of the statement. The court then fixes a hearing on the note of
objections.
7
7.
Decree for taxed expenses can be issued either on expiry of the period for
objections where none are lodged or following determination of the objections
by the court.
[17]
It was submitted on behalf of the pursuer that the point taxation concludes is stage 5.
It is only at this point that the Auditor prepares a statement of taxed expenses, which is then
open to objection for determination by the court. In the present action, stage 4 had been
completed but the action had not reached stage 5.
[18]
I agree with that proposition. Taxation results in a statement of expenses as taxed
being issued by the Auditor. If the statement has not been issued it cannot be said that there
has been taxation of the pursuer's account. In my opinion, the correct interpretation of
"prior to taxation" is "prior to the Auditor issuing his statement of the taxed account of
expenses". Any motion for certification and / or sanction which is presented after that time
would be incompetent.
[19]
That view is supported by the fact that the Auditor himself was willing to continue
the diet of taxation to allow the pursuer to enrol the appropriate motion. It is clear that the
account has not been taxed as things stand.
[20]
In addition, this issue was recently considered by Sheriff Dickson in this court on
30 September 2024 in John Campbell v Boxmove Limited (unreported). The pursuer had failed
to move for certification of a skilled witness until after a diet of taxation had commenced.
The motion was opposed by the defender on the grounds that it was too late. The defender
contended that while Rules 5.3 and 5.4 of the 2019 Rules are silent on the issue of deadlines
for motions, any such motion required to be made before a diet of taxation commenced. The
taxation had commenced but had not concluded. The Auditor had continued the diet to
allow the pursuer's motion to be decided before taxing the account. Sheriff Dickson granted
8
certification on the basis that whilst a motion for certification has to be made prior to
taxation, the action had not reached that stage as the Auditor had not issued his statement.
[21]
It might be suggested that the taxation process does not conclude until any
procedure relating to objections is concluded. It is true to say that the paying party's liability
does not crystallise until any objections are determined by the court and decree pronounced
for the taxed expenses. However, I draw a distinction between the functions of the Auditor
in relation to taxing the account and the court in determining whether (in simple terms) the
Auditor's findings in the statement of taxed expenses are open to challenge. The latter
cannot reasonably be viewed as part of the taxation of the account. It is not the court who
taxes the account. That is the sole function of the Auditor.
Decision
[22]
A motion to certify a skilled person and/or sanction for the employment of counsel
can competently be made at any time prior to the Auditor of Court issuing their statement of
taxed expenses following the diet of taxation. That is the time when an account can be said
to have been "taxed." I shall grant the pursuer's motion to a) certify Margaret McQueen,
Consultant Orthopaedic Surgeon, as a skilled person and b) sanction the employment of
junior counsel for particular work, namely, drafting the Initial Writ. Mr Hovey accepted
that the expenses occasioned by the pursuer's motion and the continued diet of taxation
should be on a no expenses basis. The defender had never entered the process but even if
that were not the case, this additional procedure resulted from oversight on the part of the
pursuer's agent for which the defender should not be liable.
